OGH: admissibility of hypothetical merger notifications in cartel law

Mar 31, 2021 Benn-Ibler Rechtsanwälte

In the course of the notification of a merger to the Federal Competition Authority (Bundeswettbewerbsbehörde, BWB), the Austrian Supreme Court (Oberster Gerichtshof, OGH) had to address the question of whether such merger notifications are possible where the actual shift in control of the company is unclear and the subject of other proceedings. The notification is based on the change from joint control to sole control over the largest Austrian daily newspaper.

As the death of the deceased, who had previously held a 50% stake in the newspaper companies, was said to have resulted in shifts in voting rights in favor of the sole co-partner, the latter notified the change of control to the BWB. Prior to the inheritance, the voting rights had been balanced. However, as a result of the inheritance, there had been a shift, which meant that the co-partner now held more than 50% of the voting rights. However, whether the aforementioned shift in voting rights actually took place is the subject of several pending legal disputes.

The OGH stated that the competition authorities do not deal with hypothetical scenarios. It could not be the task of merger control to decide on the effectiveness and validity of future acquisition transactions. Rather, these form the basis of the notification. If the transactions concerning the shift of voting rights were disputed and were the subject of several pending legal disputes, the notified transaction as a whole was not capable of being notified.

OGH 16 Ok 5/20a (25.01.2021)