I OVERVIEW

Benefiting from the continuing low interest rate environment and reorientation of business models because of digital change, in 2018 the Austrian M&A market gained momentum. The transaction volume is at its highest level since 2012 – €5 billion in the first half of 2018 (more than 175 acquisitions), compared to €2.9 billion in the first half of 2017. Deal flow for Austrian targets has benefited from strong business performance of Austrian targets combined with stable economic indicators for the Austrian economy as a whole, which leads to deal stability.

Large deals in the automotive, oil and gas sector account for more than half of the €5 billion. Korean electronics giant LG acquired 100 per cent of ZKW's shares (a specialist for premium lighting systems and electronics) for US$1.4 billion, OMV paid around US$1.2 billion for 20 per cent of the concession for two offshore oil fields of the Abu Dhabi National Oil Company and finally Xerium Technologies has been acquired by Andritz for approximately 650 million. Furthermore, there were large transactions in real estate, most prominently the €600 million acquisition of Kika/Leiner by the Signa Group in the course of the Steinhoff insolvency, which represents also a prominent deal worked on by Fellner Wratzfeld & Partners in this period.

To pursue their growth Austrian investors increasingly focus on acquisitions outside Austria (the number of acquisitions of foreign companies rose by 11 transactions to 76 (+17 per cent). German companies especially have caught the eye of Austrian investors, as more than 40 per cent of all transactions (30 deals) were closed in Germany, followed by Poland (six transactions) and the Czech Republic. Aligning with this seems to be the continued interest in Austrian companies by German investors as takeovers by German companies account for almost one-third (27 per cent) of all transactions (total deals: 18). This is followed by investors from the United Kingdom (five deals) as well as France, Sweden and the US (four each).

From a market perspective, supply and demand regarding loan financing has been growing for years. However, lending companies, in particular credit institutions, are still in the process of implementing and complying with European (and Austrian) regulatory legislation (e.g., increased equity requirements and capital buffers depending on the particular credit institution's profile).

Overall lending activity is dominated by the participation in Anglo-Saxon and German syndicated financing transactions. Deal activity in the Austrian law financing market seems to be growing, while deal volumes remain stable or below pre-crisis levels. Massive growth can be seen in deals involving low two-digit-million volumes focusing on mid-market companies. Moreover low interest rates have created a borrower-friendly environment; borrowers are seeking to refinance their existing debt on more favourable and commercially attractive terms.

II REGULATORY AND TAX MATTERS

i Licensing

In order to provide loan financing on a commercial level to companies in Austria, there are three possible options:

  1. application for a banking licence: Obtaining a banking licence is a rather complicated procedure and demands in-depth preparation over a longer period of time. One of the legal requirements that has to be satisfied and is especially extensive is the creation of an appropriate business plan that is subject to review by the regulator;
  2. it is legally possible for a credit institute of another EU Member State to establish a branch (the existing banking licence would need to be notified to the Austrian regulator); and
  3. the most common approach for non-Austrian banks that want to become active in the lending business and wish to avoid establishing a permanent presence is utilising the EU freedom of service to render services in another EU member state.

For non-banks it is possible to participate in the lending business only if this activity is exempted from the requirement to hold a banking licence (e.g., acquisition of loan portfolios by special securitisation purpose entities).

According to Section 4(1) of the Austrian Banking Act, the banking licence has to be issued by the Austrian regulator (the Financial Markets Authority) for lending business (i.e., the providing of financing to borrowers on a commercial basis). Notified licences of a credit institution domiciled in another European Economic Area (EEA) jurisdiction (based on the home Member State concept) will be held equivalent for this purpose. The same applies for the acquisition of (loan) receivables on a commercial basis (i.e., factoring), which, in principle, prevents workaround structures, such as the disbursement of a loan by an Austrian 'fronting bank' and immediate acquisition of the loan by a foreign, non-licensed lender. Limited exceptions to this principle apply, inter alia, to insurance companies granting loans for the purpose of creating a reserved asset base regarding their insured persons or customers.

Crowdfunding has recently been regulated in statutory law and provides for exceptions from both the bank licence and capital markets prospectus requirements, if and to the extent that a financing does not exceed certain thresholds. On the other hand, blockchain technologies in financing seem to be gaining tremendous attraction but remain so far unregulated. The Austrian regulator, however – as is the case with the German BaFin – is in the course of discussing the setting up of regulations.

ii Taxes and duties

Generally, not subject to withholding tax are repayments of principal under loan transactions. In addition, interest payments are not subject to withholding tax as a general rule. Rather, these payments will have to be taken into account for purposes of the (corporate) income tax of the lender.

There are numerous double taxation treaties in place between Austria and a large number of jurisdictions, which typically provide for withholding tax to be considered as a deductible or capable of being refunded, or both. If payment of interest is effected, however, to a non-Austrian lender then withholding tax in the amount of 35 per cent may apply.

A significant potential tax burden or risk has been removed from granting loans to Austrian borrowers because of the abolition of Austrian stamp duty on loans and credits, effective for loans and credits granted on or after 1 January 2011. Certain types of security arrangements (such as suretyships and assignments) would also be subject to stamp duty. There is an exception, however, for these transactions entered into for the purpose of securing loan obligations (which are, themselves, exempt from stamp duty).

Debt funding may be subject to Austrian stamp duty (applied at a rate of 0.8 per cent to be calculated on the basis of the consideration for the acquisition of the loan) if it is structured by way of the acquisition of loan receivables (on a commercial basis). Numerous workaround structures are available (such as offshore documentation, i.e., execution and permanent safekeeping of transaction documentation, certified copies, etc., outside of Austria and strict avoidance of creating 'substitute documentation') in those cases (which would not apply to the original provision of debt financing by way of disbursing a loan).

Interest charged to customers (borrowers) is not subject to regulatory limitations. However, there are certain basic limitations under Austrian civil law. Usury and potentially criminal law sanctions (for instance, fraud) are prohibited. There is a requirement, however, that the interest (agreements) may only then be considered prohibited and unenforceable if and to the extent that the agreed interest rate is clearly disproportionate to market terms and conditions and an agreement to that effect could only be reached (on record) because of the weakness, predicament or inexperience of the borrower. In the retail segment (consumer loans), various information duties and formal requirements apply. In commercial lending, relevant examples are hardly existent or relevant.

III SECURITY AND GUARANTEES

i General

In Austria, there are two general groups of collateral that may be used to secure lending obligations: personal collateral and in rem collateral.

The following types of personal collateral for securing lending obligations are the most common: (1) assumption of debt; (2) sureties; (3) guarantees; and (4) letters of comfort.

Most common types of in rem collateral are: (1) pledge of assets (such as a pledge on movables or a mortgage); (2) transfer of title for security purposes; (3) assignment for security purposes; and (4) retention of title.

The most common types of collateral in lending transactions are share pledges, mortgages, account pledges, assignment of current and future receivables, trademark and IP right pledges, and sometimes the pledge on stock in warehouses (which, based on the very stringent law on perfection, basically requires that the pledgee takes control over the stock, and is extremely difficult to establish and maintain under Austrian law).

ii Limitations

Downstream guarantees (or other security) are not restricted by Austrian law. Stringent limitations apply, however, to upstream and side-stream guarantees provided by corporations (and equivalent entities).

In principle, distributions to (direct or indirect) shareholders of a corporation (AG, GmbH, GmbH & Co KG, i.e., a limited partnership in which the only unlimited partner is a GmbH) may only be effected under specific circumstances, namely (1) in the form of formal dividend distributions based on a shareholders' resolution; (2) in the case of a capital decrease (which also requires a shareholders' resolution); or (3) in the form of a distribution of liquidation surplus. In addition, it is recognised that a company and its shareholders may enter into transactions with each other on arm's-length terms and conditions. This requirement entails that the management of the company makes – prior to entering into such a transaction – a comprehensive assessment of a proposed transaction, in particular of the risks involved, and shall only enter into such transactions with its (direct or indirect shareholder or a sister company) if and to the extent that it would enter into the transaction on identical terms and conditions with an unrelated third party. However, the management must not enter into a transaction, if by any such transaction the existence of the company would be threatened.

To some extent, Austrian case law also accepts specific corporate benefits as an adequate means of justification for granting upstream and side-stream guarantees. This corporate benefit cannot be disproportionate to the risk and must be specific and not only a general corporate benefit, such as a general 'group benefit'.

Austrian case law on these restrictions is based on a case-by-case evaluation and has become increasingly stringent over the past two decades. In practice, it is advisable to have the management of the company assess the proposed transaction in accordance with the above criteria. Potential consequences of breach of these Austrian capital maintenance rules include personal liability, potential criminal liability of the management as well as nullity of the respective transaction.

iii Roles of an agent or trustee

The collateral will cease, if accessory collateral, such as sureties or pledges, would become separate from the underlying secured obligation. Under Austrian law, the concept of 'security trustees' or 'agents', as well as a generic type of 'parallel debt' is not recognised to validly establish collateral for one 'security agent', which is not at the same time a lender or not a lender in respect of all obligations that shall be secured by the (accessory) collateral. Austrian market practice in order to ensure that the characteristic 'accessory' is fulfilled either provides that all secured parties are at the same time pledgees (or direct beneficiaries) under the security agreements or that a 'security agent' is appointed, whereby it is agreed among all lenders with the consent of the borrower (or other obligors) that the security agent is the joint and several creditor of all claims, it being further agreed among all creditors that only the security agent shall (following a decision process among all lenders) have the right to enforce the collateral and will then distribute the proceeds from this enforcement among all lenders in proportion to their exposure under the secured obligations.

As regards validity of non-accessory collateral (e.g., guarantees), it is not required that they are directly connected with the secured obligation. It is market practice to provide for joint and several creditorship if the lenders desire to execute their rights arising from the collateral via one security agent because loan documentation typically includes accessory and non-accessory collateral.

iv Collateral security over real property

Real property can be a security in the form of a pledge (mortgage). The pledge must be agreed upon between the pledgor and the pledgee. Though the pledge agreement does not require a specific form, for perfection it needs to be registered in the land register where the real property that is being pledged is located. In order to accomplish the entry into the land register, the pledgor of the property must provide a specific consent declaration in authenticated form regarding the registration. Multiple pledges over one individual property are possible. These will be ranked towards each other in terms of priority (the point in time when the application for registration of the pledge in the land register reaches the competent land register is decisive). It is possible to establish a mortgage over more than one property by creating a simultaneous mortgage.2

Registration fees amount to 1.2 per cent of the secured amount of the real property. That is why they play a significant role in the registration of a pledge over real property in the land register. In some lending scenarios, it is possible to avoid these fees. In these instances, the lender agrees to receive a registrable (i.e., authenticated) pledge agreement in combination with a ranking, which ensures for one year that no third party may enter another mortgage into the specific rank (which, however, owing to the limited time of the ranking order, the 0.6 per cent fee of the secured amount associated with the entry of such ranking order and the fact that the critical period of rescission under insolvency law will only start to run if the mortgage is registered, is not ideal in most lending scenarios.)

Generally, any fixtures and accessories are covered by the pledge. Equipment that is not connected to real property is considered to be movable property. With regard to security agreements in respect to movables, no specific formal requirements must be met. However, Austrian law imposes strict standards of perfection that either require a physical transfer of the pledged goods or any equivalent measure (such as handing over via declaration) in the event the physical transfer is too burdensome to be performed. The same strict perfection requirements are required in the event of the full title transfer of such goods for security purposes (in order to avoid circumvention).

IV PRIORITY OF CLAIMS

An opening of formal court insolvency proceedings automatically leads to a stay against all actions of unsecured creditors. However, secured creditors are usually not affected by the opening of insolvency proceedings.

There are three types of proceedings provided for in the Insolvency Act (reorganisation proceedings with or without debtor in possession and liquidation proceedings). Claims are classified and ranked in the following order or priority.

Secured creditors either have claims of separation to receive assets or claims of separation, or both, to receive the proceeds of enforcement after sale. Except for a possible voidance claim, neither of these claims are affected by the opening of insolvency proceedings. The secured creditor merely has to inform the administrator and, lacking acknowledgement of the claim, potentially file a lawsuit against the insolvency administrator in order to enforce the senior security. If these claims could jeopardise the business continuity of the debtor, there is a possibility that no secured claim may be paid within six months of the opening of insolvency proceedings. The provision may only be disregarded if the enforcement is vital to prevent severe economic disadvantages for the secured creditor.

Estate claims are to be satisfied next and, therefore, prior to the other insolvency claims. They encompass, inter alia, the costs of the insolvency proceedings, the expenses of the management and administration of the estate, claims for labour, services and goods furnished to the estate post-filing and the costs for the insolvency administrator. Preferential creditors of estate claims share in such claims on a pro rata basis.

Insolvency claims are claims by unsecured creditors and ranked next. They may be filed with the competent court within a time period fixed by the court after the opening of insolvency proceedings. Those insolvency creditors who file claims that were not contested by the insolvency administrator also share in such claims on a pro rata basis.

Subordinate claims may result from contractual provisions or from statutory provisions. In general, subordinate creditors only participate in the insolvency proceedings if a surplus for distribution is generated.

Regarding foreign creditors, no special procedures apply. Prior to the opening of insolvency proceedings, unsecured creditors can enforce a claim pursuant to the Austrian Enforcement Act.

V JURISDICTION

i Choice of law

In general, the choice of a foreign law as the governing law for a contract is permitted, even if the contract is to be enforced in Austria; in terms of market practice this might apply to (English or German law-governed) loan agreements. However, regarding the granting and perfection of security rights there are restrictions, which depending on the type of security are in most instances governed by local (Austrian) law. This would apply among others to pledges over the shares in Austrian companies, pledges over or security assignments of Austrian law governed receivables and the creation of pledges or mortgages over Austrian real properties. Therefore, it is common market practice that security rights over assets located in Austria or provided by Austrian domiciled transferors or pledgers are documented in Austrian law-governed security documentation.

ii Enforcement

Regarding the enforcement of judgments or awards that were not rendered in Austria, the following options are possible.

Court judgments of EU Member States

The enforcement of judgments rendered in another EU Member State is governed by Regulation (EC) No. 1215/2012 on the Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels Ia Regulation). In Austria the Brussels Ia Regulation is applicable. Therefore, judgments from other EU Member States are recognised without any special procedure being required or any re-examination of the merits of the case (exceptions may apply, mainly with respect to Austrian ordre public).

Court judgments of non-EU Member States

Beyond the applicability of the Brussels Ia Regulation, enforceability of foreign judgments is conditional and depends on whether there is a bilateral treaty between Austria and the home state of the other party. A fundamental criterion is reciprocity, which is to be ensured under bilateral treaties or regulations. Additionally, it is required that Austrian law would not have denied the foreign court, having rendered the relevant decision, if the defendant in the enforcement proceedings has been duly convoked in the original proceedings before the foreign court and if the relevant judgment is final in the sense that it may no longer be challenged before the courts and authorities of the foreign state. In the event the counterparty had not had the opportunity to participate in the foreign court proceedings, the enforcement of the court judgment may be denied. A similar result applies if the enforcement is aimed at an action that may not be enforced or that is not allowed under Austrian law, or if the Austrian ordre public would be violated.

Arbitral awards

Austria is a contracting state of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Arbitral proceedings and the enforcement of arbitral awards are common in Austria.

VI ACQUISITIONS OF PUBLIC COMPANIES

i Regulatory legislation

The Takeover Act 1999, amended by the Takeover Act Amendment Act 2006 and most recently by the new delisting rules of 2018, regulates public bids on the primary and secondary market. It is applicable to listed Austrian companies and focuses on regulating voluntary public takeover bids while setting out the conditions that trigger compulsory takeover bids. The Takeover Act is not applicable to non-public bids and bids for shares that are not listed on a stock exchange. However, if in the course of a non-public bid a person obtains a controlling interest in an offeree company, such person will then be subject to the rules on mandatory public bids of the Takeover Act. Furthermore it is relevant regarding cross-border takeover transactions. In case a public company is incorporated in Austria but the shares are not admitted to trading in Austria but on a regulated market of another member state of the EU, takeover bids are only subject to a number of basic provisions of the Takeover Act 1999, including, inter alia, the provisions regarding mandatory public bids.

Other relevant legislative acts include the Stock Exchange Act, which is of importance regarding stake-building, ad hoc disclosure and insider trading, and the Austrian Stock Corporation Act, which is also applicable to stock corporations (applicable regulations including those mentioned above).

Since December 2007 takeovers by cross-border mergers have been permitted. The legal framework for these takeovers is provided by the EU Merger Act. In this context, the Squeeze-Out Act opens up the possibility of squeezing-out minority shareholders (up to 10 per cent of the remaining shareholders) in both listed and unlisted companies.

The Foreign Trade Act can be of great importance to foreign investors when acquiring shares of 25 per cent or more in an Austrian company involved in specific protected industry sectors, such as defence equipment, energy, water supply, traffic, education and telecoms. The acquisition then requires advance approval from the Austrian Ministry of Economic Affairs.

ii Public offers

Public offers are the most common way to obtain control of a public company, whether they are voluntary or mandatory, or a voluntary bid aimed at control.

Avoiding the application of the Takeover Act to public offers is possible in certain cases despite the change of control in the Austrian target, particularly if they are structured as cross-border reverse takeovers.

iii Hostile bids

Hostile bids are permitted. However, they are not as common as in some other jurisdictions due to the two-tier board structure of Austrian AGs; an AG listed on the stock exchange must have a management board and a supervisory board and publicly held shares (free float).

VII OUTLOOK

The outlook for 2019 is rather difficult owing to macroeconomic developments, including Brexit, the possibility of US tariffs on EU products, the Turkish currency and debt crisis that could have an impact on economies and the banking system of EU Member States. Nevertheless, international investors have shown interest in Austrian companies for some time and likely will continue to do so. We expect Austria to remain an active M&A jurisdiction given that top, technologically advanced Austrian companies continue to make strides, all within a very stable economic environment in Austria. We also expect that Austrian companies will continue to expand internationally.


Footnotes

1 Markus Fellner, Florian Kranebitter and Paul Luiki are partners at Fellner Wratzfeld & Partners.

2 Simultanhypothek.