A merger control proceeding with the Austrian competition authorities runs a bit differently from anywhere else, and if you enter phase 2, the dynamic changes completely to a court-led system. International counsel have described the Austrian system to me as “surprising” and “nerve-wracking”. It should not be, and this post unpacks it.
A few structural particularities that stand out:
Austria has two competition authorities. Alongside the Federal Competition Authority (Bundeswettbewerbsbehörde, BWB), which had 63 employees at the end of 2025, sits the Federal Cartel Prosecutor (Bundeskartellanwalt, BKAnw) at the Federal Ministry of Justice, bound by the Minister’s instructions and charged with the public interest, above all in court. With two deputies and one lawyer it is thinly staffed – and nonetheless conspicuously active.
The Austrian authorities issue neither a clearance nor a prohibition decision. They can waive their right to object or let the deadline pass – either way the deal is cleared. Letting the deadline pass is by far the most common route to clearance: out of 374 merger notifications in 2025, 352 were cleared because the four-week clock ran out. Nor can either of them prohibit it: for that they must apply to the Cartel Court, and once they do they are no longer in the driving seat but one party to litigation.
The clock is ticking. If the case reaches the Cartel Court, it can prohibit only within five months of the application, and on appeal the Supreme Court has to decide within two months. Even if the case is fought to the last instance, it is decided quickly.
Before you file: three things that catch people out
Run the thresholds twice, and once more for media. The ordinary turnover test: combined worldwide above €300m, combined Austrian above €30m with at least two parties above €1m each, and two parties above €5m each worldwide. A transaction-value test adds a second route: worldwide above €300m, Austrian above €15m, deal value above €200m, plus the ambiguous “significant activity” in Austria. Then the trap: where at least two parties are media undertakings or media services, their turnover is multiplied by 200. Roughly €150,000 of Austrian media revenue therefore meets the €30m threshold – so any deal touching publishing, broadcasting, advertising sales or a content platform becomes notifiable very quickly.
Pre-notification is not the default. Unlike Brussels, most Austrian filings go in cold – rightly, where there is no overlap. Where there are material overlaps, parties have an interest in engaging with the authorities: four weeks is not enough to take the authorities through an unfamiliar market from a standing start, especially where they need to understand market dynamics and closeness of competition rather than just market shares.
Filing technicalities – what you need and what is nice to have. While you do not need a signed power of attorney, you need to pay the filing fee before submission. The standard form also asks for some information that is not required elsewhere: the name of every subsidiary in which a party holds more than 25%, the parties’ annual reports, an account of previous dealings between them. Uncommon elsewhere, but they buy comfort cheaply. On market data there is more flexibility than before the Commission: show that the deal raises no concerns and you may not need data for every hypothetical cut of the market.
Phase 1: four weeks, and the calendar usually decides
The clock is short, and it is yours to extend. The two authorities have four weeks after filing to apply to the Cartel Court, extendable by two weeks at the parties’ request. Early clearance needs both of them to waive that right, and in practice you must give a good reason why it matters in your case.
The questions arrive late. In Brussels a request for information tends to land within about five days. In Vienna the authority usually waits two weeks – the window for third-party submissions – so most questions come in week three or four. A slow answer then eats the deadline. A quick response increases the chance that the authorities can finalise their assessment and exclude concerns.
And there are two triggers, not one. The BWB and the BKAnw are independent, and either can apply on its own. It happens in both directions: in Austria Asphalt only the BKAnw applied (yes, the case that later went to the European Court of Justice); in Otis/Jeitler-Fida only the BWB.
Phase 2: two authorities, a court and an expert
The court decides, but you still negotiate with the authorities. The BWB and the BKAnw lose some control in phase 2, since the final decision is the court’s. But agree a suitable remedy package and they can withdraw their application, clearing the deal – a strategic option worth keeping in mind throughout.
And you carry the burden. Reach 30% of the market – or more than 5% with no more than two competitors, or be among the four largest firms jointly holding 80% – and the law presumes dominance and leaves it to you to disprove. Under the EU Merger Regulation the Commission proves its case; in Austria you prove the negative.
The expert is crucial. In phase 2 the facts are largely found by a court-appointed economist. In Wabtec/Dellner (see our blog post here) the market definition, the closeness-of-competition analysis and the finding on price effects all followed his report. Advocacy moves the expert less than testable data.
Judicial review: the facts are closed, the law is not
The record closes at first instance. On appeal the Supreme Court reviews whether the expert’s method was adequate. The facts can be attacked only where the file raises serious concerns of an intolerable erroneous decision. Nor can you repair it on the way up: in Wabtec/Dellner a fresh document produced on appeal was disregarded.
The audience changes. BWB case teams are often trained competition lawyers, increasingly paired with economists. The BKAnw and, still more, the judges at the Cartel Court and Supreme Court come through the general judicial career rather than a competition specialism, with more time behind them in civil, criminal or real-estate matters than in digital-market economics or innovation competition. In practice they are more receptive to procedural arguments, and to arguments relating to the historic interpretation of the law or case law, than to economic arguments or novel theories of harm.
Between the lines: what to take away
With that in mind, the Austrian process should feel less “surprising” and less “nerve-wracking”. In short:
In phase 1, no news is good news: since most filings are approved by silence, there is usually no reason to worry if you do not hear anything from the authorities.
But: diary the full four weeks and staff the back half: early clearance is hardly ever granted, and weeks three and four are when most questions land.
And remember: there are two triggers. In phase 1, winning looks like giving both authorities enough comfort not to apply.
In phase 2, write for an economist and a judge. Assume that the facts are built by an expert report you never see in draft, written by someone persuaded by data, and then reviewed by judges who are not Brussels-bubble competition aficionados and may have spent as long on real-estate disputes as on competition law.
Merger control is not the only Austrian filing that surprises an international deal team. Foreign investment screening has its own thresholds, its own authority and a busier enforcement record than most expect. That is the subject of one of the next posts.
Disclosure: This article was written the way we work. The topic, the analysis, the arguments and the final wording are ours. We use AI as a research and drafting tool along the way. The result is meant to speak for itself.