Scope of Austrian Competition Law

Oct 15, 2026 Benn-Ibler Rechtsanwälte

In a recent decision, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH), sitting as the appellate competition court, considered when a concentration between foreign undertakings has effects on the Austrian market and is therefore subject to Austrian merger control.

Concentrations notified retrospectively

The respondent in the case at hand is an undertaking incorporated in Germany which subsequently expanded into several other European countries. It is alleged to have implemented two concentrations with other undertakings which, according to the Austrian Federal Competition Authority (Bundeswettbewerbsbehörde, BWB), were subject to mandatory notification but were completed without prior notification and notified retrospectively only several years later.

The respondent contended that the transactions were not notifiable in Austria because they had no appreciable effects on the Austrian market. The two companies in which shareholdings were acquired generated turnover in Austria of only EUR 127,000 and EUR 50,000 respectively and, moreover, had no establishments in Austria.

The Vienna Higher Regional Court, sitting as the competition court, imposed a fine of EUR 240,000. The OGH confirmed that the concentrations had effects on the Austrian market and, on appeal by the BWB, increased the fine to EUR 2,400,000.

Location of the undertakings

According to the OGH, under section 24(2) of the Austrian Cartel Act 2005 (Kartellgesetz 2005; KartG), the absence of establishments of the target companies in Austria, or of establishments conducting business with Austrian customers, does not preclude the concentrations from having effects on the Austrian market, since the relevant consideration is the effect of the circumstances on that market. Accordingly, no ‘structural presence’ of the undertakings concerned in Austria is required.

Level of domestic turnover

Nor is it necessary for the target companies to exceed any specified minimum level of turnover in Austria, since Section 24(2) of the KartG does not prescribe any thresholds. Accordingly, the level of domestic turnover established for the target companies does not, of itself, permit the conclusion that the concentrations were incapable of appreciably restricting competition in Austria.

The low turnover generated in Austria by both target companies is relevant to the assessment of the amount of the fine but does not preclude the concentrations from having effects on the Austrian market. Aggravating factors were the degree of culpability, which was more than minor, and the prolonged duration of the infringements. 

OGH 16 Ok 6/26g (23 September 2026)