AUSTRIA Law and Practice

Contributed by: Markus Fellner, Florian Kranebitter and Mario Burger, Fellner Wratzfeld & Partners

Other Regulated Industries

The acquisition of target companies in other regulated industries may require the prior approval of the competent regulatory body or may be subject to certain reporting requirements.

Listed Targets

For listed targets, the major shareholder reporting requirements apply pursuant to the Austrian Stock Exchange Act 2018 (Börsegesetz 2018). Any person who – directly or indirectly – reaches, exceeds or falls below the thresholds required by law (between 4 % and 90 % or, if included in the target’s articles, between 3 % and 90 %) is obliged to notify the FMA, the Vienna Stock Exchange (Wiener Börse – VSE) and the target company without undue delay but within two trading days the latest.

The Austrian Takeover Act (Übernahmegesetz – ÜbG) also provides for the possibility for the target company to lower the takeover threshold which triggers the reporting obligation. Reporting requirements also apply if certain financial instruments are acquired or sold, or if a person can exercise or influence the exercise of voting rights without being the owner of such financial instruments.

9.2 Listed Targets Public Takeovers

Public takeover bids are regulated under the ÜbG, if the target is a joint stock corporation (Aktiengesellschaft) domiciled in Austria and its shares are admitted to trading on the VSE on the regulated market. If the joint stock corporation is incorporated in Austria and the shares are not admitted to trading on the VSE but on a regulated market in another member state of the EU and a public bid is or has to be launched, the Austrian Takeover Commission (Übernahmekommission) is the authority in charge of the public bid. The ÜbG requirements regarding inter alia, the notification of employees, the “control” threshold triggering a mandatory bid, exemptions from the duty to launch a mandatory bid and defensive measures apply.

If a public company is not incorporated in Austria but in another EU member state and its shares are not admitted to trading on a stock exchange at the seat of incorporation but on the VSE (if shares are trading on different exchanges within the EU, the first admission of trading takes place on the VSE), the ÜbG requirements regarding the tender offer content and tender offer proceedings apply.

10. Jurisdiction-Specific Features

10.1 Other Acquisition Finance Issues

In Austria, there are no other relevant considerations to be taken into account for the practice of acquisition finance.