The International Comparative Legal Guide to Aviation Law ... - Jarolim

Jarolim Flitsch Rechtsanwälte GmbH
Austria
that the judicial protection, which cannot be reached in time by
regular civil proceedings or enforcement proceedings, can be
temporarily secured.
In arbitral proceedings, the parties also have the possibility to
request an interim or securing measure against the other party after
their hearing in order to secure the enforcement of a claim (Art 593
ZPO).
On a final basis, the main remedies are those of restitution in kind,
specific performance, damages or a declarative statement.
3.5 Are there any rights of appeal to the courts from the
decision of a court or arbitral tribunal, and, if so, in what
circumstances do these rights arise?
Yes, any decision from a court of first instance can be appealed
against.
In civil matters, if the subject matter is below the value of EUR
2,700, one can generally only raise a so-called “bagatelle appeal”
(Bagatellberufung) on the grounds of nullity of the proceedings or
a misconceived legal assessment by the court. If the value in
dispute is higher than EUR 2,700, one can raise an appeal against a
first-instance decision on the grounds of nullity of the proceedings,
other procedural deficiencies, incorrect factual finding, factual
finding due to wrong consideration of evidence, non-conformity
with matters on the record or misconceived legal assessment. The
time limit for an appeal is four weeks from service of the written
decision.
The competent courts for civil matter appeals are the regional courts
for first-instance decisions of the district courts and the higher
regional courts (Oberlandesgerichte) for first-instance decisions of
the regional courts.
An arbitrator’s award can be challenged on the grounds that the
decided matter had not been arbitrable or for ordre public reasons.
It must be raised within three months from service of the award (Art
611 ZPO).
In line with Article 3 of EC Regulation No. 139/2004, the creation
of a full function joint venture is subject to merger control.
However, the creation of a non-full function joint venture could
constitute a cartel. The merger control rules catch both
concentrative and cooperative full function joint ventures.
4.2 How do the competition authorities in Austria determine
the “relevant market” for the purposes of mergers and
acquisitions?
The respective relevant markets are the flight routes. In order to
determine whether or not a transaction has an effect on competition,
the respective relevant markets (flight routes) are compared; it
might suffice to determine whether or not the transaction has the
capacity to have an effect on competition. Certain effects of a
transaction, for example, consumer benefits or positive welfare
effects, may justify a competitive effect. Overlapping markets
(routes) are generally considered to have an effect on the relevant
market; non-overlapping markets are eligible to have such an effect.
As concerns airports, the relevant geographic market usually
comprises an ambit of about 100km for regional and 300km for
international airports. The relevant product market may be split
into airport infrastructure services, ground handling services and
non-aviation services (parking, restaurants, etc.).
4.3 Does Austria have a notification system whereby parties
to an agreement can obtain regulatory clearance/anti-trust
immunity from regulatory agencies?
The Austrian cartel law does not provide such a system. Each
undertaking has to assess its agreements and concerted practices by
itself and bears the risk of its own correct judgment.
4.4 How does Austria approach mergers, acquisition mergers
and full function joint ventures?
Austria
4 Commercial and Regulatory
4.1 How does Austria approach and regulate joint ventures
between airline competitors?
Competition between airlines is regulated by the competition law.
Austrian competition law is mainly set out in the Austrian Act
Against Unfair Competition (Gesetz gegen den Unlauteren
Wettbewerb - UWG) and the Austrian Cartel Act 2005
(Kartellgesetz 2005 - KartG). In addition to the national legal
framework, European competition law is applicable. The basis of
the European competition rules (as far as procedural aspects are
concerned) is EC Regulation No. 1/2003 on the implementation of
the rules on competition laid down in Articles 81 and 82 of the EC
Treaty and EC Regulation No. 139/2004 on merger control (now
Articles 101 and 102 TFEU). EC Regulation No. 411/2004 relates
explicitly to the aviation sector, extending the applicability of
European competition law to air transport between the EU and third
countries.
The applicable competition rules are applied by the regular national
and European competition authorities. The main national
competition authority in Austria is the independent Federal
Competition Agency (Bundeswettbewerbsbehörde - BWB). The
BWB is also responsible for merger control. Next to the BWB,
there is the federal antitrust prosecutor who is directly controlled by
the federal minister of justice.
Article 7 KartG describes all types of merger transaction, from the
acquisition of an undertaking or a major part thereof to the (direct
or indirect) acquisition of shares, if thereby a shareholding of 25%
or 50% is attained or exceeded until the establishment of a fullfunction
joint venture. It is worth mentioning that the acquisition of
a shareholding of 25% or more is also covered by the KartG,
regardless of whether or not control is conferred by the transaction.
A concentration has to be notified to the BWB if the following
thresholds are fulfilled (based on the revenues of the previous
business year):
1. the combined worldwide turnover of all undertakings
concerned exceeds EUR 300 million;
2. the combined Austrian turnover of all undertakings
concerned exceeds EUR 30 million; and
3. the individual worldwide turnover of each of at least two of
the undertakings concerned exceeds EUR 5 million.
However, even if the above thresholds are satisfied, no obligation to
notifiy exists if:
the Austrian turnover of only one of the undertakings
concerned exceeds EUR 5 million; and
the combined worldwide turnover of all other undertakings
concerned does not exceed EUR 30 million.
These thresholds may be overridden by the “one-stop-shopprinciple”
under EC Regulation No. 139/2004.
Merger control also applies in the absence of a substantive overlap.
ICLG TO: AVIATION LAW 2013
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