Higher Regional Court confirms group privilege

Alpenmilch Salzburg Gesellschaft mbH (“Alpenmilch Salzburg”) and Käsehof GmbH (“Käsehof”) notified on 09 February 2012 the acquisition of 51% of shares of Käsehof by Alpenmilch Salzburg to the Austrian Federal Competition Authority (“BWB”).

The same companies notified in April 2013 in eventu a merger to the BWB, in which 15% of the shares of Alpenmilch Salzburg were transferred to the (co-) shareholder Käsehof Cooperative Society eGen.

The parties to the concentration, as well as the BWB and the Federal Cartel Prosecutor (“official parties”), claimed that the already existing shareholding of 51% would be exempt from the notification requirement due to the “group privilege” according to sec. 7 para. 4 of the Austrian Antitrust Act. Thus, the transaction was notified with a request to be dismissed since a notification was not mandatory.

The BWB and the Cartel Court follow this opinion. Anyhow, the 15% shareholding by Käsehof Cooperative Society would not fulfill the requirements for a mandatory notification according to sec. 7 of the Austrian Antitrust Act. Hence, the Cartel Court announced on 14 November 2013 in case 24 Kt 57/13 that the application dated 08 May 2013 was rejected due to the lack of a notification requirement.

Authors:

Dr. Christina Hummer
Ori Kahn