GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth, David-Julien dos Santos Goncalves and Kaan Gürer, Linklaters
In terms of acquisition of minority interests, or other interests less than control, a transaction must be noti - fied if the acquirer, following the transaction, holds 25% (or more) of the capital or the voting rights in another undertaking, or gains a competitively signifi - cant influence on another undertaking. The latter scenario covers acquisitions of minor - ity stakes of less than 25% in another company. Competitively significant influence arises where the acquired interest confers upon the acquirer the abil - ity to influence the commercial policy and, thus, to affect the competitive behaviour of the target com - pany. The FCO determines on a case-by-case basis whether this has occurred. In doing so, it consid - ers the rights resulting from the amount of acquired shares as well as so-called plus factors as identified in FCO case law. These plus factors are, for example, voting and veto rights, and board representation rights of the acquirer; other personal links between the par - ties; options and pre-emptive rights, and information rights of the acquirer; and separate agreements with the target company. Plus factors do not necessarily have to be ensured by binding agreements; it is sufficient if they provide the acquirer with a factual and lasting influence. 2.5 Jurisdictional Thresholds German merger control law provides for a turnover thresholds test and, since 2017, for a subsidiary trans - action value test. In the course of the passage of the Competition Enforcement Act, which constitutes the 11th amendment of the GCA, a new filing obligation following sector inquiry was introduced in November 2023. Turnover Thresholds Test Pursuant to Section 35 (1) of the GCA, a transaction falls within the scope of German merger control law if in the last financial business year: • the combined worldwide turnover of all participat - ing undertakings exceeded EUR500 million; • one participating undertaking achieved a German turnover of more than EUR50 million; • another participating undertaking achieved a Ger - man turnover of more than EUR17.5 million; and
• the merger has an effect on the German market. Size-of-Transaction Test There is a size-of-transaction test that alternatively applies if the second domestic turnover threshold of EUR17.5 million is not met. A concentration has to be notified if in the last financial business year: • the combined worldwide turnover of all participat - ing undertakings exceeded EUR500 million; • one participating undertaking achieved a German turnover of more than EUR50 million; • neither the target nor another participating under - taking achieved a German turnover of more than EUR17.5 million; • the value of the transaction (the financial compen - sation) exceeds EUR400 million; and • the target has significant activities in Germany. An exemption to both threshold tests can apply to the credit and banking sector if companies do not provide end consumer services. There is an ongoing debate on how the requirement of “significant activities” of the target company shall be interpreted and applied, especially in so-called mature markets. Last year, the German Federal Court of Jus - tice ( Bundesgerichtshof ) clarified that the requirement of “significant activities” should refer to a company’s current competitive activities within Germany, allowing only for the exclusion of activities that are merely mar - ginal in the domestic market. The Court further indi - cated that a different approach to assessing mature markets should be adopted only in exceptional cir - cumstances (see decision of 17 June 2025, KVR 77/22 – Meta / Kustomer ). The FCO Guidance on Transaction Value Thresholds for Mandatory Pre-Merger Notifica - tion including additional information on the interpreta - tion of Section 35 (1a) of the GCA (published together with the Austrian Competition Authority in July 2018 and updated in January 2022) is therefore currently being updated because it does not reflect the current legal situation following the judgment. However, the FCO announced in a note within the Guidance that it will base its application practice on the principles set out in the aforementioned court decision.
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