Schoenherr has successfully represented Adler Real Estate AG in proceedings before the European Court of Justice in a matter relating to the Austrian Takeover Commission.
The ECJ has ruled that, according to Schoenherr, “the Austrian Takeover Commission in its current structure is not independent and does not act in accordance with European law due to the lack of legal protection and appeal possibilities for market participants. As a result, the decisions of the ATC issued against Adler and contested by Schoenherr as Adler's legal advisor have no binding effect in civil and administrative proceedings and are therefore irrelevant. The Republic of Austria is now expected to amend the Austrian Takeover Act.”
According to the firm, “in March of 2016, the ATC accused Adler, together with other parties to the proceedings, of acting as joint legal entities in the course of a planned takeover of Conwert Immobilien Invest SE and of 'acting in concert'. According to the ATC, Adler, together with other shareholders, acquired a controlling interest in Conwert on September 29, 2015, and subsequently wrongfully failed to submit a mandatory tender offer. Although the ATC acted as 'investigator', 'prosecutor' and 'judge' vis-a-vis Adler, Adler has been excluded from challenging this ruling of the ATC in front of an independent court under the current appeal regime of the Takeover Act.”
According to Schoenherr, “in subsequent proceedings, the Federal Administrative Court followed the suggestion of Schoenherr as Adler’s legal representative and requested clarification from the ECJ as to whether this limited appeal regime infringes European law. The ECJ confirmed that the current structure of the ATC is not in line with European law, in particular Article 47 of the European Charter of Fundamental Rights. Since the ATC is structured as a court of [inquest] and is therefore not independent in the sense of European law, market participants should be able to have decisions of the ATC fully reviewed by an independent court. This is currently not the case. As a consequence, the rulings issued by the ATC against Adler cannot ultimately have any binding effect and are therefore irrelevant.”
Schoenherr’s team included Partners Andreas Natterer, Christian Schmelz, and Sacha Hodl, Counsel Sacha Schulz, and Attorneys Sarah Khalil and Christian Holzer.