Three mergers notified retroactively
Kiesel, a company based in Germany, is primarily engaged in the trade, manufacture, rental, servicing and repair of construction machinery and related products and services.
In 2023, the company voluntarily notified the following three mergers to the AFCA retroactively:
- the acquisition of a shareholding in Vemcon GmbH (BWB/Z-6236)
- the acquisition of a shareholding in Suncar HK AG (BWB/Z-6237)
- October 2023: the acquisition of a shareholding in EmiControls Europe GmbH (BWB/Z-6400)
In August 2025, the AFCA applied to the Cartel Court for the imposition of an appropriate fine for the illegal implementation of these three mergers (see press release of 29 August 2025).
Cartel Court imposed a fine of EUR 240,000
In the proceedings before the Cartel Court, Kiesel disputed that the three mergers had been subject to notification obligations. Among other things, the company argued that there were insufficient domestic effects. With regard to the EmiControls transaction, which had been notified retroactively, Kiesel additionally took the view that there had been no merger. The target company had not carried out any independent economic activity and no substantial part of an undertaking had been transferred.
The Cartel Court found that the Suncar and Vemcon transactions had been implemented illegally and imposed a fine of EUR 240,000. The Cartel Court dismissed the AFCA’s application insofar as it concerned the EmiControls transaction.
AFCA appealed against the Cartel Court’s decision
Both the AFCA and Kiesel appealed against the Cartel Court's decision. Kiesel challenged in particular the finding that there were sufficient domestic effects and the assessment of its degree of fault.
The AFCA challenged in particular the weighting of the criteria used to determine the amount of the fine. In the AFCA’s view, a higher fine was necessary in order to adequately reflect the gravity and duration of the infringements as well as considerations of general and specific deterrence.
Supreme Cartel Court ruling
The Supreme Cartel Court upheld the AFCA’s appeal and increased the fine to EUR 2.4 million.
With regard to the determination of the amount of the fine, the Supreme Cartel Court stated, among other things, that a breach of the standstill obligation must generally be regarded as serious. At the same time, however, the Supreme Cartel Court considered the infringement to be less serious because, in the absence of grounds for prohibiting the mergers, the infringement was merely one involving transactions that were unlikely to be prohibited.
As aggravating factors, however, account had to be taken of the fact that Kiesel was responsible for two breaches of the standstill obligation, each of which lasted for a long period, and that Kiesel’s degree of fault was more than minor.
As mitigating factors, account was taken of the limited size of the market affected by the infringement, particularly in Austria, the voluntary retroactive notification of the mergers and Kiesel’s cooperation in clarifying the facts of the case.
Taking into account all relevant factors for determining the fine as well as its preventive and punitive purposes, which require the fine to be set at a noticeable and therefore deterrent level, the Supreme Cartel Courtconcluded that a fine of EUR 2.4 million was appropriate.
Standstill obligation safeguards effective merger control
Notifiable mergers may only be implemented once the standstill obligation no longer applies. The standstill obligation ensures that the competition authorities are able to assess any potential anti-competitive effects before a merger is implemented. Upon application by the AFCA, the Cartel Court may impose a fine of up to 10% of the undertaking’s total turnover achieved in the preceding business year.