Austria: A Competition/European Law Overview

Increased Focus on Merger Control

Merger control has become one of the defining features of Austrian competition practice, and businesses involved in cross-border transactions increasingly find that Austria demands early and careful attention. Austrian competition authorities have made merger control a clear priority – including a readiness to open in-depth proceedings where other regulators handling parallel filings have already cleared the same transaction in phase I. The practical consequence is that Austrian timelines, information requirements and internal preparation cannot simply be based on what applies in other jurisdictions.

For technology and innovation-driven transactions in particular, the transaction value threshold adds a further dimension: it can bring a deal within the scope of Austrian merger control even where the target generates no, or only minimal, local revenues. In many cases, especially with early-stage platforms or data-driven companies, the valuation and strategic relevance of a deal can be much higher than the target's actual revenues in Austria. Assuming that Austria is therefore not relevant can turn out to be a costly mistake. Equally, it has been clarified that low combined market shares do not protect parties from the notification obligation once the transaction value threshold is met: the fact that a deal produces only a limited or negligible market overlap in Austria does not mean that no notification is needed, and proceeding on that assumption carries legal risks. In technology and innovation-driven transactions, Austrian notifiability is therefore best treated as a standalone analysis, not an afterthought to EU or other turnover-based screens.

The Austrian authorities also bring a notably cooperative spirit to the merger review process. The Austrian Competition Authority (BWB) has established a practice of engaging constructively with parties at the pre-notification stage. Early dialogue allows the authorities to understand the transaction in its full context, helps parties clarify the scope of their filing obligations, and creates the conditions for a focused and well-structured review. Especially in cases with new or unusual business models or complicated market structures, this kind of early co-operation can be very helpful. It allows the parties and the authority to identify the key issues before the formal process starts, which generally makes the review more focused and faster.

Non-compliance with the standstill obligation is treated seriously: closing before clearance – or failing to notify at all – can result in substantial fines. The BWB’s enforcement action against REWE – resulting in a fine of EUR70 million – has made clear that gun-jumping is a risk with financial consequences, not a theoretical concern.

Competition Law as a Panacea Against Inflation?

Competition law has become a regular topic in political debate in Austria in a way that would not have been expected a few years ago. The main reason for this is inflation. When food and energy prices rose sharply after the pandemic and the energy crisis, the Austrian government turned to Competition Law. Calls for competition authorities to investigate were increasingly seen as a panacea.

In Austria, this had concrete consequences. The competition authorities looked closely at the food retail sector as well as the energy sector and took enforcement actions that were significant both in scale and in visibility. In the energy sector, the political response went even further: Austria introduced specific crisis legislation that directly regulated market behaviour and pricing in energy markets. For companies in these sectors, the impact went beyond the specific cases: business practices that had been used for many years suddenly attracted legal attention that companies had not seriously considered before. Many businesses had to review their commercial practices.

For companies, the increased political and regulatory attention has had very practical effects. The need for legal advice has grown significantly. Businesses are now expected to be able to explain and justify commercial practices that were previously simply part of how the market worked. This creates additional costs and requires internal resources that many companies, particularly smaller ones, do not easily have available. At the same time, the enforcement activity may help to clarify a legal position that was genuinely uncertain before – which is not without value for companies that need to plan ahead. The overall picture is therefore mixed.

Competition Law and a Rapidly Changing Geopolitical Landscape

The rules of competition law were written for a more predictable world. Today, sanctions, supply chain disruptions, and rapidly shifting trade corridors are rewriting competitive dynamics fast. For competition lawyers and their clients, this creates both practical uncertainty and important conceptual challenges.

One of the most significant consequences of geopolitical fragmentation is the increasing volatility of market shares, particularly among niche operators. Where trade flows shift rapidly, driven by export controls, tariffs, or political realignments, companies that previously held modest positions can find themselves temporarily dominant in a given market.

This volatility is at odds with the static snapshots that competition law usually relies on. Market definition, the market share thresholds under block exemption regulations – such as the Vertical Block Exemption Regulation – and dominance assessments are all calibrated against a degree of market stability that geopolitical disruption increasingly calls into question. A company hovering near the 30% threshold under the VBER may find itself on either side of that line within a single calendar year, with significant compliance implications.

These issues are barely addressed in the guidance provided by the European Commission or national competition authorities. Those operating in affected sectors, ranging from raw materials and energy to logistics and industrial components, would be wise to build flexibility into their compliance programmes and engage proactively with the evolving interpretive landscape before enforcement catches up with market reality.