Introduction

The Austrian Cartel Act 1988 (Kartellgesetz, KartG) and the Austrian Competition Act (Wettbewerbsgesetz, WettbG) were amended in June 2005. The new Cartel Act 2005 and the amended Competition Act entered into force on 1 January 2006. With respect to the Austrian merger regime governed by the Cartel Act and the Competition Act, the amendments brought about only minor modifications. Changes include higher turnover thresholds, the exclusivity of turnover-based fines, a leniency programme and the competency of the Federal Competition Authority (the “FCA”) for filing notifications. These changes are flagged and discussed in the text that follows.

Notification requirements

In the new Cartel Act 2005, concentrations are defined in Section 7.

The concept of concentration

According to Section 7(2) of the new Cartel Act 2005, cooperative full-function joint ventures are regarded as concentrations within the meaning of the Austrian merger regime while Section 7(4) provides that intra-group mergers are exempt from merger control.

The Cartel Act 2005 abolished the distinction between concentrative and cooperative full-function joint ventures insofar as both forms of joint ventures will qualify as concentration within the meaning of the Austrian merger regime.

Notification thresholds

In the new Cartel Act 2005, the thresholds are set out in Section 9(1). The new Cartel Act 2005 brought about the following changes:

• The turnover thresholds must not simply be met, but exceeded.

• The second turnover threshold (combined turnover in Austria) has been increased to €30 million.

• The third turnover threshold (of each undertaking concerned worldwide) has been increased to €5 million.