Merger Notice in Austria

Conducting an M&A deal in Austria requires prior notification. There’s no legally required deadline for making advance notice; however, since M&A deals mustn’t be concluded before resolution, it’s required that notices be issued well in advance of the expected conclusion date. If parties have reached a deal on a deal’s structure & timing, a prior notice of a merger in Austria can be submitted prior to signing a relevant agreement. Failure to submit a notice entails no consequences; however, executing a transaction before resolution may involve paying fines.

Responsibility for Submitting Documents & Fees

Each of the interested companies has the right to submit prior notification of a merger of Austrian companies. Shared notifications are acceptable, but rarely used in practice. During the preliminary verification phase (Stage I), there’s a fee of three thousand five hundred euros for registration of mergers in Austria. During Stage II, a one-time fee of thirty four thousand euros (there may be additional expenses involved if in-depth analysis is required) is levied. 

Executing a Transaction Prior to Getting Permission

Normally, the wait time for Stage I & Stage is four & six weeks respectively. A party issuing a notice can request that the deadline for Stage I be extended by two weeks to prevent an in-depth investigation from being initiated. It makes sense only under the condition that FCP & FCA have made sure that a merger in the Republic of Austria constitutes no competition-related problems.

An M&A deal is deemed null & void if it has been completed before being approved by regulatory authorities (and the same goes for basic agreements).

If an M&A deal has been concluded in contravention of the existing rules, parties that knowingly or unknowingly have perpetrated such a violation may have to pay a fine of up to ten percent of their yearly turnover.

Sanctions for Concluding a Deal Prior to Getting Authorization

Failure to issue a prior notice entails penalties if an M&A deal involving the sale of an Austrian company to foreign investors has been initiated. 

Austria: Public Takeovers

Pursuant to the M&A Act, it is possible to submit a public takeover bid in Austria  Monitoring compliance with the Act is vested in the Takeover Group.

Documentation

Merger notices issued in the Republic of Austria must be precise & contain exhaustive information on all aspects of an upcoming transaction, including:

• structure of companies involved in a transaction;
• turnover over the last fiscal year;
• market shares;
• general market conditions; 
• other factors capable of affecting the outcome of an upcoming deal.

Stages of Investigation

After receiving a notification, the FCA must forward its copy to the FCP & publish its summary (containing partes’ names, deal type (M&A, JV in Austria, etc) & business sectors)).

3rd parties that might be legally or economically affected by the deal can forward written copies of their comments to FCP & FCA within two weeks from the date of the notice’s publication. 

Following the commencement of Stage II, the relevant regulatory authorities can decide whether to authorize or disallow a deal within a 5-month period. Once the FCA has made a final decision, it is published on its official webpage.

Those wishing to conclude an M&A deal in Austria should keep in mind that they can only  only withdraw their requests under exceptional circumstances. Once Stage II has commenced, withdrawing requests is their only option to put a hold on a deal prior to the completion of a comprehensive review period.