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Content last updated: 24-10-2019

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  • Merger Control Regime
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1. Overall description of merger control regime

1.1 Supranationality

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

Yes, Germany is a Member State of the EU.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

In case a transaction meets the filing requirements of the German merger control rules, the transaction will have to be notified to the German Bundeskartellamt and cleared prior to closing.

In case the thresholds and other requirements of the EU Merger Regulation are met, the transaction will only have to be notified to the European Commission (“one-stop-shop”) and not to the German Bundeskartellamt as well. Exceptions are provided for in the EU Merger Regulation.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

A notification to the Bundeskartellamt is mandatory if the transaction qualifies as concentration under German law and the statutory thresholds are met.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

Yes, in case a transaction is subject to German merger control review or if the notification was submitted without the obligation to do so, completion of the transaction is prohibited prior to clearance.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

A transaction is caught by the German merger control rules in case of the acquisition of control, the creation of a joint venture, the acquisition of minority shareholdings or of a material competitive influence below the level of control. The German Act against Restraints of Competition defines several types of transactions which make a concentration notifiable:

a) the acquisition of all or a substantial part of the assets of another enterprise;

b) the acquisition of direct or indirect control over another enterprise or parts thereof by one or several enterprises;

c) the acquisition of capital shares or voting rights in an enterprise resulting in an overall shareholding of 25% (or more) or 50% (or more); and

d) any other combination of companies enabling one or several companies to directly or indirectly exercise a material competitive influence on another enterprise (this may also cover acquisitions of minority shareholdings of well below 25%).

If credit institutions, financial institutions or insurance companies acquire shares in another company for the purpose of reselling them, this does not constitute a concentration as long as such shareholders do not exercise their voting rights and the sale takes place within one year. This one-year deadline may be extended by the Bundeskartellamt upon request if sufficient proof is provided that the resale would be unreasonable within the one-year deadline.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

The acquisition of a share in an existing joint venture and the creation of a joint venture qualifies as a concentration if it involves: (1) the acquisition of sole or joint control; (2) or a share in the capital or voting rights of 25% (or more); (3) or a share or voting rights enabling the acquirer to directly or indirectly exercise a material competitive influence.

The acquisition of 25% or more of the shares or voting rights in the target will be considered as a (partial) merger of all undertakings which hold 25% or more of the shares or voting rights in the target enterprise post-transaction. In such a scenario, not only the acquirer and the target but all other undertakings, with a shareholding of 25% or more, are considered as undertakings concerned for the purposes of the merger review procedure.

German merger control covers both full-function and non-full-function joint ventures. Therefore, transactions concerning non-full-function joint ventures (not performing all the functions of an autonomous economic entity on a lasting basis) can also be notifiable under German law.

In addition, joint ventures are not only subject to merger control, but may also fall under the provisions on restrictive practices (§ 1 of the German Act against Restraints of Competition, Art. 101 TFEU).

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

The concept of control is similar to the one adopted in the EU Merger Regulation. The German test covers both the acquisition of sole and of joint control as is the case with EU Regulation. Control is defined as the capacity to exercise decisive influence over the activity of an enterprise which can be conveyed by rights, contracts or any other means, either by each of these on their own or collectively while consideration is given to the specific facts or the applicable law involved.

Whether decisive influence over an enterprise can be exercised has to be decided based on the facts of each specific case. Decisive influence can be acquired de jure in the form of voting or special rights; or de facto based on a historic pattern of attendance of annual general meetings or by other means.

Control does not require ownership of shares or assets; mere long-term contractual agreements may be sufficient (e.g. agreements regarding the lease of a business). Control can also be acquired by minority shareholders (and also below 25%) if certain veto rights regarding strategic decisions are acquired, such as: veto rights over the appointment of senior managers; over the business plan; over the budget; and/or over the decisions to invest.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

The acquisition of minority shareholdings or of material competitive influence below the level of control may be sufficient, see Section 1.1.1 above.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.

For the question which undertakings shall be considered for the calculation of turnover, see Section 3.3.2 below.

As regards the question of which undertaking is an undertaking concerned in the substantive sense, a distinction must be made with regard to the form of the concentration:

in the case of an acquisition of assets: the acquirer, and the target (represented by the seller);

in the case of a merger: the companies which are going to merge;

in the case of the acquisition of sole or joint control: the undertakings which would exercise control and the undertaking which is the subject to control;

in the case of an acquisition of 25% or 50% of the share capital: the acquirer(s) and the undertaking in which the shares are acquired;

- in a transaction involving the acquisition of a significant competitive influence: the enterprises which can exercise a significant competitive influence and the enterprise subject to this influence.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

A transaction has to be notified under German law if all requirements triggering a notification obligation are met at the time of closing.

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

The first alternative threshold:

Merger control filing is required when, in the last financial year:

a) the combined global turnover of all the undertakings concerned exceeded EUR 500,000,000; and

b) at least one of the undertakings concerned had a turnover in Germany exceeding EUR 25,000,000; and

c) at least one of the other undertakings concerned had a turnover in Germany exceeding EUR 5,000,000.

However, the transaction is exempt from filing if one of the undertakings concerned achieved a global turnover of less than EUR 10,000,000. In case this party is the target, the seller and all its affiliates are considered, provided that the seller controls the target. In case the party achieving less than EUR 10,000,000 is the acquirer, all its affiliates are considered.

This threshold does not apply if the concentration stems from a combination of public undertakings as a consequence of a “reform of communal territory”.

The second alternative threshold:

Merger control filing is required when, in the last financial year:

a) the combined global turnover of all undertakings concerned exceeded EUR 500,000,000; and

b) one of the undertakings concerned had a turnover in Germany exceeding EUR 25,000,000; and

c) none of the other undertakings concerned had a turnover in Germany exceeding EUR 5,000,000; and

d) the consideration for the transaction exceeds EUR 400,000,000; and

e) the target is active in Germany to a significant extent (local nexus).

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

The first alternative set of thresholds cannot be triggered by only one of the undertakings concerned having local turnover.

The second set of thresholds can be triggered by only one of the undertakings concerned having local turnover.

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

No.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

Transactions falling below the above thresholds may generally not be investigated by the Bundeskartellamt.

However, following a sector inquiry into 550 German asphalt mixing plants, which was conducted in 2012, the Bundeskartellamt held that the sector inquiry revealed that a German-wide closely-knit network of company interlocks in the rolled asphalt sector existed. Some of these interlocks were not compatible with competition law, although the transactions leading to this outcome had either been cleared or were not subject to merger control at the time of combination.

The Bundeskartellamt opened 104 divestiture proceedings, while more than half of these proceedings concerned joint ventures (see the Bundeskartellamt divestiture report in the rolled asphalt industry, dated July 2015).

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

In case a credit institution, a financial institution or insurance company acquires shares in another company for the purpose of reselling the shares, such transaction does not constitute a concentration as long as the acquirers do not exercise the voting rights of the shares and if the resale takes place within one year. This deadline may be extended by the Bundeskartellamt upon request if there is sufficient proof that the sale was unreasonable within the one-year limit.

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Foreign-to-foreign mergers are subject to German merger control only if they have an “appreciable effect” within the territory of Germany. However, the Bundeskartellamt applies this concept of an appreciable effect quite broadly. If the transaction is subject to the first set of thresholds, almost all foreign-to-foreign transactions will have an appreciable effect within the territory of Germany in practice, even if the undertakings concerned have no affiliates or assets within Germany.

An exception may apply in case of foreign joint ventures, if the turnover thresholds are met by the parent companies alone via activities that are not (directly) related to the joint venture. The Bundeskartellamt has provided guidance with specific examples as well as a flowchart to illustrate how to apply the concept of appreciable effects (see Merkblatt Inlandsauswirkungen in der Fusionskontrolle, Sep 2014).

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

Only the net turnover related to the sale of goods and/or services in the ordinary course of business is relevant, excluding any rebates, value added tax and other taxes directly related to the turnover and also excluding internal sales within the group.

The turnover of the seller is not relevant, unless the seller remains a controlling or jointly controlling shareholder or maintains a shareholding of 25% or more post-transaction (or significant competitive influence).

See Section 3.7.1 below for specific rules within the media, reselling, building society, banking and insurance industries.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

The Bundeskartellamt provides certain information and leaflets on merger control. However, the last update is from July 2005; it may be updated at some point in the future.

See “Leaflet - German Merger Control”, available at: http://www.bundeskartellamt.de

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The relevant turnover to be taken into account must be calculated by reference to the companies’ last completed financial year, on a global consolidated group basis.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Yes, adjustments must be made for any divestitures or acquisitions made during or after the latest financial year. Turnover stemming from such divested or acquired assets should be taken into account and should either be excluded or included accordingly.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

Under German merger control law, the undertakings concerned which are relevant for the calculation of the thresholds depend on the form of the combination:

in the case of an acquisition of assets: the acquirer including all entities belonging to its group (i.e. parent, subsidiaries, sister companies etc.) and the target;

in cases of a merger: the companies which are going to merge (including all entities belonging to the same group of each party);

in the case of the acquisition of sole or joint control: the undertakings which may exercise control and the undertaking subject to control (including all entities belonging to the same group of each party);

in case of an acquisition of 25% or 50% of the share capital, the acquirer(s) and the undertaking in which the shares are acquired (including all entities belonging to the same group of each party);

in a transaction involving the acquisition of a significant competitive influence, the enterprises which can exercise a significant competitive influence and the enterprise subject to this influence (including all entities belonging to the same group of each party).

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

The seller's turnover shall not be included in the target's group turnover. However, if the seller retains sole or joint control, its turnover has to be considered as well.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

In general, the geographical allocation of turnover shall be based on the place where the customer was located at the time of the transaction which generated the turnover, i.e. typically where the goods were actually delivered or the services were actually provided (the place where competition takes place).

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Under the second alternative set of thresholds, the target must have sufficient local nexus (be active in Germany to a significant extent). This term is different from the question of whether the transaction can have an “appreciable effect” in Germany. In July 2018, the Bundeskartellamt, together with the Austrian competition authority, published a joint guidance paper on this threshold. Since the threshold is rather new and since such notifications are quite rare, it is advisable for the parties to seek informal guidance from the Bundeskartellamt. In 2017, the Bundeskartellamt received only 3 and in 2018 only 8 notifications subject to merger control based on the second set of thresholds, and thus, experience is rather limited in this regard.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

If an enterprise only purchases and resells goods, only 75% of the turnover resulting from the mere trade of goods is to be taken into account.

If an enterprise is active in the publication, production and distribution of newspapers, magazines and parts thereof, or in the production, distribution and broadcasting of radio and television programs, or in the sale of radio and television advertising time, the turnover archived has to be multiplied by a factor of 8.

There are also special rules for credit institutions, building societies and insurance companies (see § 38 of the German Act against Restraints of Competition).

3.7.2 Does any exemptions apply?

Not applicable.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

In case of an acquisition of assets: the acquirer and the seller (the target assets represented by the seller).

In cases of a merger: the companies which are going to merge.

In case of the acquisition of sole or joint control: the undertakings which may exercise control (if a new entity is being created, all undertakings acquiring joint control are responsible for the notification).

In case of an acquisition of 25% or 50% of the share capital: the acquirer(s) and the undertaking in which the shares are acquired.

In a transaction involving the acquisition of a significant competitive influence: the enterprises which can exercise a significant competitive influence and the enterprise subject to this influence.

In practice, however, often only one notification is submitted by the acquiring party on behalf of all of the parties involved. It is sufficient if one party submits one single notification with the complete information required (in practice outside counsel would combine the relevant information, while confidential and competitively sensitive information may not be shared among the undertakings).

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

There are no mandatory deadlines for filing. However, a transaction meeting the above requirements has to be notified and cleared prior to its implementation.

1.2.2 Are there any sanctions for not filing within the deadlines?

Not applicable.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Yes, a notification can be submitted where the undertakings concerned demonstrate to the Bundeskartellamt an intention in good faith to consummate a certain transaction which triggers the notification requirements.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

Yes, filing fees are payable to the Bundeskartellamt and can amount to up to EUR 50,000. If the transaction is of minor importance or with insignificant effect on the German market, the filing fees normally range between EUR 5,000 and EUR 15,000. In exceptional cases, a fee of up to EUR 100,000 may be set. The Bundeskartellamt determines the fees by taking into consideration both its administrative expenses (personnel and material) and the economic significance of the transaction. The Bundeskartellamt can also recover costs for external economists and other consultants from the parties.

1.4.2 When must the filing fee must be paid?

After the merger control review, when the Bundeskartellamt renders it decision (most clearance decisions are a two pager with the payment order).

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

The Bundeskartellamt publishes a short notice on its website (see the “list of current merger control proceedings”). This notice only provides the date of filing, the file number, the undertakings concerned, the relevant product areas, the Federal State affected and the date and status of the decision when it is available.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

The Bundeskartellamt regularly publishes a press release and case summaries on its website following the adoption of a decision. Phase II decisions must be published (in redacted form). In some more politically sensitive cases, the Bundeskartellamt would comment in the media as well.

1.5.3 Will third parties be able to review the notification?

Generally, the notification is not available for review to third parties. However, if another party is invited to join in a merger proceeding before the authority for certain reasons, possibly to challenge a clearance decision, certain rights to review the file are available. Trade secrets of the undertakings concerned can be redacted.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

German law does not provide for a specific simplified merger control procedure. However, Germany is one of the few jurisdictions worldwide that requires only a limited amount of information from the outset.

Approx. 99% of all German clearances are issued within the Phase I investigation and within a period of 1 month. In case of an unproblematic transaction, and provided the notification is complete and the case team (decision division) has enough capacity, a transaction may be cleared well before the period of 1 month has elapsed.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

German law does not provide for a simplified procedure, see Section 2.1.1 above.

In general, and where a simple case is concerned, pre-filing consultations with the Bundeskartellamt are not necessary. However, in complex cases that are high-profile and may raise competition concerns, the Bundeskartellamt welcomes pre-filing consultations.

After the notification has been submitted and as soon as the Bundeskartellamt has sufficient data on the relevant markets, a decision is likely to be issued after internal discussions within the case team (decision division) responsible for the review. If the case team requires additional information, which often is the case, or needs to verify the information provided by the parties, it often contacts other market participants, such as competitors, customers or suppliers, to seek their views and information and to conduct a market test.

In most cases, the Bundeskartellamt is able to ascertain that the transaction does not raise substantive competition issues in Germany during the Phase I investigation. In these cases, an informal clearance letter will be issued. The clearance letter does not include the reasoning of the Bundeskartellamt and is not subject to appeal by third parties.

In case the Bundeskartellamt identifies competition concerns during the Phase I investigation, it must inform the parties within 1 month that an in-depth investigation (Phase II) will be initiated. In case the concerns are not confirmed during the Phase II investigation, the Bundeskartellamt will either clear the transaction directly or, if there are intervening third parties, issue a draft clearance decision.

In case the Phase II investigation confirms the competition concerns, the authority will set out the identified competition issues in a written statement of objections. Both the statement of objections and the draft clearance decision provide an opportunity to comment. Upon request of the notifying parties or the intervening third parties, the Bundeskartellamt will allow them to present their comments in a meeting with the decision division.

Merging undertakings can submit proposals for commitments at any time of the procedure, provided the case team has enough time to review and market test such proposals.

At the end of the Phase II investigation, the Bundeskartellamt will issue: (1) a clearance decision; (2) a clearance decision with commitments; (3) or a prohibition decision. All three decisions are formal administrative acts, which must provide the reasoning of the authority and which are subject to a full judicial review.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

See the second paragraph in Section 2.2.1 above.

2.2.3 Are there any sanctions for not filing within the deadlines?

Not applicable.

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Phase I:

Starting from the date the complete notification has been submitted, the Bundeskartellamt must decide within 1 month whether to clear the transaction or, if the transaction raises competition concerns, whether to commence an in-depth Phase II investigation.

Phase II:

Decisions in Phase II proceedings must be issued within 4 months of submitting the complete notification. This period may be further extended, provided that the notifying parties consent. This is often the case if commitments have been proposed by the parties in order to allow the Bundeskartellamt to properly test the commitments in the markets. Another automatic one-month extension is available if the parties submit commitments. In addition, there is a stop-the-clock mechanism in Phase II proceedings, should the notifying parties not provide a complete response to a request for information.

Approx. 99% of all German clearances are issued within Phase I and within a period of 1 month. In 2018, the Bundeskartellamt issued 1,313 merger control decisions, while only 8 entered the into Phase II.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

Yes, the statutory timetable and deadlines can be suspended if the review by the Bundeskartellamt is impeded due to circumstances attributable to the notifying parties in case of a non-complete notification. There is also a stop-the-clock mechanism in Phase II proceedings, should the notifying parties not fully respond to a request for information.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

Pre-notification contact with the Bundeskartellamt is usually not necessary, and only advisable in complex cases. In case the parties decide to pre-notify, there is no statutory timetable/deadline for the pre-notification period. If initiated, the duration of such a period may vary from 1 week to several weeks, depending on the complexity of the specific transaction at hand.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

No, the notifying parties do not have to use a mandatory notification form. Even though the Bundeskartellamt has published a merger template, German law does not require such a form to be adhered to and notifications are in practice often submitted in German in letter format.

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

As described in Section 3.1.1 above, a specific form is not required, and in practice a notification is usually submitted in German in letter format.

If a transaction is notified because it fulfils the second set of thresholds, the value of consideration for the transaction and the methodology for the calculation of the same are also to be explained. It is advisable to also provide at least some basic information on the concerned markets.

Foreign undertakings must appoint a representative in Germany on whom documents in the merger proceedings can be formally served.

Under German law, the undertakings concerned do not have the obligation to submit the share purchase agreement or other acquisition or merger agreements or any additional documents such as internal reports or annual reports and accounts. However, the Bundeskartellamt sometimes requests such documents.

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Not applicable.

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

The notification has to be made in German. In case the Bundeskartellamt requests documents, English documents are often accepted, and a translation must only be provided on request.

3.4.2 Does translations have to be certified/legalized and apostilled?

Not applicable.

Statutory timetable

Step Description Time
1

Pre-notification

In general, and where a simple case is concerned, pre-filing consultations with the Bundeskartellamt are not necessary. However, in complex cases that are high-profile and may raise competition concerns, the Bundeskartellamt welcomes pre-filing consultations.


There is no statutory timetable/deadline for the pre-notification period. If initiated, the duration of such a period may vary from 1 week to several weeks, depending on the complexity of the specific transaction at hand.

2

Phase I

After the notification has been submitted and as soon as the Bundeskartellamt has sufficient data on the relevant markets, a decision is likely to be issued after internal discussions within the case team (decision division) responsible for the review. If the case team requires additional information, which often is the case, or needs to verify the information provided by the parties, it often contacts other market participants, such as competitors, customers or suppliers, to seek their views and information and to conduct a market test.

In most cases, the Bundeskartellamt is able to ascertain that the transaction does not raise substantive competition issues in Germany during the Phase I investigation. In these cases, an informal clearance letter will be issued. The clearance letter does not include the reasoning of the Bundeskartellamt and is not subject to appeal by third parties.

Starting from the date the complete notification has been submitted, the Bundeskartellamt must decide within 1 month whether to clear the transaction or, if the transaction raises competition concerns, whether to commence an in-depth Phase II investigation.

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

3

Phase II

In case the Bundeskartellamt identifies competition concerns during the Phase I investigation, it must inform the parties within 1 month that an in-depth investigation (Phase II) will be initiated. In case the concerns are not confirmed during the Phase II investigation, the Bundeskartellamt will either clear the transaction directly or, if there are intervening third parties, issue a draft clearance decision.

In case the Phase II investigation confirms the competition concerns, the authority will set out the identified competition issues in a written statement of objections. Both the statement of objections and the draft clearance decision provide an opportunity to comment. Upon request of the notifying parties or the intervening third parties, the Bundeskartellamt will allow them to present their comments in a meeting with the decision division.

Merging undertakings can submit proposals for commitments at any time of the procedure, provided the case team has enough time to review and market test such proposals.

At the end of the Phase II investigation, the Bundeskartellamt will issue: (1) a clearance decision; (2) a clearance decision with commitments; (3) or a prohibition decision. All three decisions are formal administrative acts, which must provide the reasoning of the authority and which are subject to a full judicial review.

Decisions in Phase II proceedings must be issued within 4 months of submitting the complete notification. This period may be further extended, provided that the notifying parties consent. This is often the case if commitments have been proposed by the parties in order to allow the Bundeskartellamt to properly test the commitments in the markets. Another automatic one-month extension is available if the parties submit commitments. 

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

Approx. 99% of all German clearances are issued within Phase I and within a period of 1 month. In 2018, the Bundeskartellamt issued 1,313 merger control decisions, while only 8 entered the into Phase II.

  • Step 1 1
  • Step 2 2
  • Step 3 3
  • Not defined
  • 1 month
  • 4 months (from Step 1) + extensions

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Supporting documentation

This content was delivered
and last updated on 24-10-2019 by
Contact Person
Sebastian Jungermann, Partner

Arnold & Porter has provided all input about merger control in Germany.

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