In March 2016, the Austrian Takeover Commission (“Commission”) initiated a formal investigation pursuant to section 33 para 1 sub-para 2 of the Austrian Takeover Act (“ATA”). The Commission had reason to believe that several acquiring parties involved with Adler Real Estate AG may qualify as “parties acting in concert” pursuant to section 1 para 6 of the ATA and collectively may have held a controlling stake in Conwert. If true, these controlling parties would have been legally obligated to make a mandatory tender offer to the remaining shareholders in 2015, immediately after becoming such controlling parties. In addition, they would have failed to properly report and disclose appropriate financial and ownership information. Due to these reasons, the Commission initiated a formal investigation pursuant to section 33 para 1 sub-para 2 of the ATA on its own motion.
Recently, the Commission’s decision dated 22 November 2016 was made publicly available under the reference number GZ 2016/1/2-317. In its decision, the Commission reached the conclusion that five parties (ADLER Real Estate AG, MountainPeak Trading Limited, Mr. Cevdet Caner, Westgrund AG and Petrus Advisers LLP) qualify as “parties acting in concert” under the ATA, and ruled that they subsequently failed to make a mandatory takeover offer in 2015. The decision was reached on a relatively broad definition of the term “parties acting in concert”. Therefore, it is expected that the above five parties will not accept the Commission’s ruling and appeal its decision to the Austrian Supreme Court. The investigation was discontinued with respect to the other parties concerned.
Rautner Attorneys-at-law was involved in the proceedings and represented one of the parties with respect to which the investigation was discontinued. Rautner was represented by Dr. Uwe Rautner, LL.M. (Partner), Meera Ramakrishnan (Partner) and René Semmelweis, LL.M. (Associate).