As reported previously, German competition law was recently amended. The amendments included with the introduction of a “size of transaction”-threshold a notable change with respect to German merger control. The following is a reminder of five important features of German merger control which you should be aware of:
The jurisdictional thresholds of German merger control are easily triggered
German merger control applies if the parties to a transaction (usually the acquirer and the target) exceeded, in the last financial year, certain turnover thresholds. In an international context, these thresholds are relatively low and easily triggered:
- Joint worldwide turnover of all parties > € 500 million, and
- German turnover of at least one party > € 25 million, and
- German turnover of another party > € 5 million.
There is a new “size of transaction”-threshold
Since June 2017, German merger control can also be triggered if a newly introduced “size of transaction”-threshold is exceeded:
- Joint worldwide turnover of all parties > € 500 million, and
- German turnover of at least one party > € 25 million, and
- “value of compensation” > € 400 million, and
- The target company has “significant business activities” in Germany (which may be activities with revenues < € 5 million).
The “value of compensation” includes the purchase price and all other assets and non-cash benefits, as well as liabilities assumed by the purchaser.
Acquisition of minority shareholdings may be notifiable
Similar to the HSR Act, but different to European Union merger control and most European jurisdictions, German merger control is not limited to the “acquisition of control”. Additional triggering events are
- The acquisition of 25% or more of the shares in a company, and
- The acquisition of a shareholding below 25% if this, combined with other factors (e.g. the right to appoint one out of five members of the board), may have an impact on competition (“acquisition of ability to exercise competitively significant influence”).
Review of joint venture situations
German merger control may apply in joint venture situations that are often not covered by other merger control laws:
- German merger control may apply to the setting up of a joint venture company, even if the joint venture will have no activities in Germany. The jurisdictional thresholds may be satisfied by the parent companies alone. While there is an exemption for transactions with “no effect in Germany”, it is interpreted very narrowly and applies only in exceptional circumstances.
- German merger control applies to all joint venture situations where two or more parties acquire or continue to hold a shareholding of 25% or more. Examples:
– A and B set up a 50/50 production joint venture.
– A acquires sole control and a 70% shareholding, and B acquires a non-controlling 30% shareholding.
– A sells 75% of a fully owned subsidiary to B, and retains only a 25% minority shareholding.
– A, B and C each own 1/3 in a joint venture company. C divests his shareholding to A and B.
In each of these examples, the turnover of both A and B (and possibly the target/joint venture company) will have to be taken into account for assessing the jurisdictional thresholds.
The bright side: The process is usually quick, efficient and relatively inexpensive
The number of transactions requiring a merger control notification to the German Federal Cartel Office (“FCO”) is, compared to most other jurisdictions, relatively high. On the plus side, the notification process is, in most cases, quick, efficient and, in cases without true competition issues, relatively inexpensive.
- The large majority of transactions notified to the FCO are cleared in Phase 1.
- The maximum duration of Phase 1 is one month; fairly often, the FCO clears transactions within two or three weeks after notification.
- In straightforward cases, the amount of formal information that needs to be provided is limited, and the notification can be drafted relatively quickly.
- The fee imposed by the FCO in non-complex matters usually ranges between € 5,000 and € 15,000.
