The amendment to the anti-trust law, which entered into force on
1 May 2017, also contains a new consideration test. From now on, it
must be taken in account during mergers.
The new consideration test concerns mergers implemented after
the 1 November 2017, meaning that transactions may already require
a corresponding check and notification. Failing to notify a merger
that is subject to notification can be expensive, with the highest
penalty imposed to date amounting to EUR 1.5 million! Up until now,
the Austrian merger control was based on a system of turnover
thresholds. The new Austrian anti-trust law has now introduced a
consideration test, for which there is a complete lack of practical
experience in Europe. Due to unspecific legal terms, it is also
easily possible for the new regime to encompass more transactions
than the legislator actually intended. This means that companies
are still exposed to legal uncertainty.
