German And Austrian Competition Authorities Publish Draft Guidelines On New Transaction Value Merger Control Thresholds

In the wake of the Facebook/WhatsApp deal, Germany and Austria amended their respective competition laws in 2017 and supplemented the traditional turnover threshold test for pre-merger control notification with a size-of-transaction threshold test. Under the new rules, certain transactions that do not meet turnover thresholds must nevertheless be notified if the transaction value exceeds EUR 400 million (Germany) or EUR 200 million (Austria).

On May 14, 2018, the German and Austrian competition authorities published joint draft guidance on the new thresholds for public consultation (the Draft Guidelines). For the first time, the Draft Guidelines give insight into the authorities' likely interpretation of the new statute and provide clarification on aspects of the size-of-transaction threshold. In view of the severe consequences of failures to make mandatory filings—potential invalidity of implementation acts and fines for gun-jumping—such guidance is welcomed. The