EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

2021). Already in 2017, alongside Germany, Austria introduced an additional transaction value threshold into its merger control provisions in order to catch transactions that concerns targets with no substantial turnover, in order to mend a regulatory loophole recurrently observed in the digital industry. Now, with the 2021 amendment, a new local revenue requirement is added to the existing revenue-based threshold: In addition to a combined Austrian turnover of all undertakings concerned exceeding € 30 million, the amendment introduces a new second domestic turnover threshold, requiring that at least “two of the undertakings concerned each […] have a turnover of more than € 1 million” in Austria (the other two turnover thresholds remain unchanged, i.e., a combined worldwide turnover of more than € 300 million and at least two concerned undertakings having a worldwide turnover of more than € 5 million). It is expected that the number of notifiable mergers in Austria will substantially decrease as a consequence to the new threshold.The Austrian Federal Competition Authority estimates the number of notifiable transactions to decrease by more than 40%. Based on this estimate, the number of notified transactions in 2020 would have been around 240 instead of 429. In particular, the amendment will exclude most cases of acquisition of sole control where the target company only achieved insignificant domestic turnover from Austrian merger control (unless the transaction falls under the alternative transaction value threshold or if a joint venture is created where the turnover of other shareholder(s) has to be taken into account, such as a remaining shareholder with a participation of 25% or more). The other elements of the existing jurisdictional thresholds remain unchanged: The parties’ combined worldwide revenues must have exceeded € 300 million and each of at least two parties must have had worldwide revenues of more than € 5 million. Also, the existing de minimis exemption and the existing transaction value threshold are unaffected by the amendments. Accordingly, a transaction that otherwise meets the revenue-based thresholds is not notifiable if only one party had revenues of more than € 5 million in Austria and all other parties’ combined worldwide revenues did not exceed € 30 million. Also, a transaction that does not meet the revenue-based thresholds is notifiable if the parties’ combined worldwide revenues exceeded € 300 million, the parties’ Austrian revenues exceeded € 15 million, the transaction value is more than € 200 million, and the target has significant market-related activities in Austria. This threshold can be met in circumstances where the target has zero revenues in Austria, provided its non-revenue generating activities in Austria are “significant”. The broad Austrian rules on the determination of the relevant group revenue are not amended either. Note that the revenues of companies that are connected via non-controlling 25%-shareholdings are relevant in full for jurisdictional purposes. Transactions, where the target itself has Austrian revenues of less than

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