GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth, David-Julien dos Santos Goncalves and Kaan Gürer, Linklaters
Linklaters LLP Königsallee 49-51 40219 Düsseldorf Germany Tel: +49 211 229 770 Fax: +49 211 229 774 35 Email: daniela.seeliger@linklaters.com Web: www.linklaters.com
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation German merger control rules are contained in Sec - tion 35 et seq of the German Competition Act (GCA, Gesetz gegen Wettbewerbsbeschränkungen ). Further - more, the German Federal Cartel Office ( Bundeskartel- lamt or FCO) has issued several guidance papers on its website – eg, in relation to domestic effects, market dominance and the size-of-transaction threshold. 1.2 Legislation Relating to Particular Sectors Concerning other relevant legislation for foreign trans - actions or investment, Germany has one of the most established and active foreign investment control regimes in Europe. See 9. Foreign Direct Investment/ Subsidies Review . 1.3 Enforcement Authorities The German merger control regime is enforced by the FCO, which has its seat in Bonn. The FCO is headed by a president, currently Andreas Mundt. If a merger has been prohibited by the FCO, the par - ties may apply to the Federal Ministry for Economic Affairs and Energy under Section 42 of the GCA and ask for a ministerial authorisation of the transaction.
2.2 Failure to Notify The GCA does not sanction a failure to notify but does impose sanctions for the implementation of a notifi - able transaction prior to clearance (see 2.13 Penal- ties for the Implementation of a Transaction Before Clearance ). 2.3 Types of Transactions For merger control purposes, Section 37 GCA exhaus - tively defines concentrations as any of the following transactions: • an acquisition of assets constituting the whole or a substantial part of an undertaking; • a transaction conferring direct or indirect control of the whole or parts of an undertaking; • the acquisition of shares in another undertaking if such shares alone, or together with shares already held, amount to or exceed 25% or 50% of the undertaking’s share capital or voting rights; or • any other combination of undertakings where one or several undertakings can exercise, directly or indirectly, competitively significant influence over another undertaking. The latter covers acquisitions of minority stakes of less than 25% in another company. Such transactions have to be notified if they confer upon the acquirer the ability to exercise influence on commercial policy and, thus, affect the competitive behaviour of the target company. As in the EU merger control regime, the acquisition of shares for resale by credit institutions, financial institutions or insurance undertakings is not consid - ered a concentration as long as the acquirer does not
2. Jurisdiction 2.1 Notification Notification is mandatory.
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