The Energy Regulation and Markets Review - Stikeman Elliott

ii
Regulated activities
Austria
According to the laws and regulations mentioned under Section II.i, supra, certain
activities are subject to approvals (licences, permits) by different authorities including:
a construction and operation of power plants;
b construction and operation of electricity grids and gas pipelines;
c exploration and production of natural gas; and
d acting as a balance group representative (for the balance group model see Section
IV.i, infra).
According to the ElWOG, the sale of electricity does not require an authorisation.
However, the state-level Electricity Acts provide various regulations which apply to
trading in electricity. For example, the Viennese Electricity Act stipulates that electricity
traders delivering power to final customers are obliged to notify the commencement
of their trading activities to the state government. The commencement of natural gas
trading also has to be notified to the competent authority.
In general, the legal entity or natural person has to enclose certain information to
its application for approval of an activity. The authority has to take a decision and issue
the approval or refuse the application within a certain period of time. The authority is
also entitled to impose specific conditions under which the approved activity can be
carried out.
iii Ownership and market access restrictions
Generally, the Austrian energy law does not distinguish between foreign and domestic
companies. Therefore, no special requirements or limitations are imposed on foreign
companies, neither in the electricity sector nor in the gas sector. The ElWOG sets out a
specific certification procedure for TSOs, however, that are controlled by persons from
third countries. Therefore, it is most likely that the transfer of control over a TSO to
persons from third countries may require prior approval from E-Control. Furthermore, at a
constitutional level, it is set out that at least 51 per cent of the shares of certain listed Austrian
electricity companies, among them Verbund-Gesellschaft, must remain state‐owned.
iv Transfers of control and assignments
Mergers, acquisition of assets or ownership interest of 25 per cent or more, as well as
other forms of change in control in undertakings, are subject to pre-merger notification
to the Federal Competition Authority (‘the BWB’), if the companies involved realised
the following turnover thresholds:
a a combined turnover exceeding €300 million worldwide;
b a combined turnover exceeding €30 million in Austria; or
c at least two of the undertakings concerned each achieved a worldwide turnover
exceeding €5 million.
The notification is initially assessed by the BWB and the federal cartel attorney, who
represents the public interest in competition matters (Phase I). If the planned transaction
gives rise to competition concern the BWB and the federal cartel attorney (the official
parties) may request an in-depth investigation (Phase II) by the Cartel Court. The
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