GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth, David-Julien dos Santos Goncalves and Kaan Gürer, Linklaters
through obligations and conditions) or if the Federal Minister for Economic Affairs and Energy grants per - mission to implement the transaction (as discussed below), the FCO will close the demerger proceedings. This has an effect tantamount to a clearance deci - sion, so the legal acts carried out in relation to the transaction will retroactively become valid. Otherwise, if the FCO does not approve the transaction, it may dissolve it. Furthermore, under the GCA, the invalidity of specific transactions caused by gun-jumping may be cured by way of registration. This applies to real estate agree - ments once they have become legally valid by entry into the land register; to certain agreements on the conversion, integration or formation of an undertaking; and to enterprise agreements once they have become legally valid by entry into the appropriate register. 2.14 Exceptions to Suspensive Effect The suspension obligation does not apply to public takeover bids or to the acquisition of shares in a series of transactions via stock exchanges as long as those concentrations have been notified to the FCO and the acquirer does not exercise the voting rights related to the shares, or exercises them only to maintain the full value of its investment on the basis of an exemption granted by the FCO. The FCO may, upon application, grant derogations from the suspension obligation if the parties can jus - tify such exemptions; however, in practice, deroga - tions are rarely granted. In clear-cut Phase I cases, it is normally faster to obtain a clearance decision than derogation from the suspension obligation. 2.15 Circumstances Where Implementation Before Clearance Is Permitted Apart from exceptions in relation to public takeovers or a specific authorisation by the FCO, parties are pro - hibited from closing the transaction before clearance, which usually includes carve-out solutions. Only in very exceptional circumstances may such scenarios be conceivable, and only then if separation and com - pletion will, beyond any doubt, have no impact on the German market.
In any case, all carve-out solutions should be carefully prepared, analysed and discussed, together with the FCO, prior to implementation. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There is no formal deadline for filing a notification. 3.2 Type of Agreement Required Prior to Notification A binding agreement is not a prerequisite for filing. Parties only have to demonstrate a good faith inten - tion to implement the transaction. 3.3 Filing Fees The FCO charges an administrative fee on the basis of a general fee regulation act. The FCO has discretion in determining the amount, and various criteria are considered in this regard. The main factors that are considered are: • the parties’ German turnover; • the FCO’s (personnel) expenses (if the transaction required a detailed or simple investigation); and • the economic relevance of the case, including the parties’ shares in the relevant markets. The maximum statutory amount is EUR50,000 or, in exceptionally complex cases, EUR100,000. In practice, fees usually vary between EUR5,000 and EUR15,000 (simple Phase I clearances), or between EUR10,000 and EUR25,000 (complex Phase I cases), or exceed EUR20,000 (Phase II investigations). Usually, the administrative fee is payable within one month following clearance of the transaction. 3.4 Parties Responsible for Filing In theory, the acquirer and the target are obliged to notify in the event of an acquisition. If shares or assets are being acquired, the seller is also subject to a noti - fication obligation. In practice, however, the FCO is usually satisfied if one of the parties (normally the acquirer) submits a notifi -
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