GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth, David-Julien dos Santos Goncalves and Kaan Gürer, Linklaters
cation (ideally but not necessarily in co-ordination with the other parties that are obliged to notify). The other parties may also “join” the acquirer’s notification by submitting a one-line letter. It is also possible (but not common) to notify jointly. 3.5 Information Included in a Filing The FCO publishes as guidance a filing form on its website; however, this form is not mandatory and is rarely used in practice. Notifications are usually filed in the form of a letter to the FCO. The following informa - tion is mandatory for a complete filing, which triggers the deadlines. • A description of the transaction, including, in the case of an acquisition of shares, the size of the interest acquired and of the total interest held. • Information on the participating undertakings – ie, worldwide, European and German group turnover information, and a list of subsidiaries, including, for both the participating undertakings and the subsidiaries, information on registered seat and business activities; if the size-of-transaction test applies (Section 35 (1)(a) GCA), parties have to submit information on the transaction value and the relevant calculation methods. • Information on market shares reaching at least 20% within Germany (national or regional markets) and underlying sources; although not explicitly required, it is best practice to submit general market share information for the relevant market affected by the transaction (which can be defined wider than Germany) and to provide names of the parties’ main competitors and their market share estimates. • Indication of a person authorised to accept servic - es in Germany if the registered seat of a participat - ing undertaking is not located in Germany. Submitting a Filing The filing has to be submitted in German. Parties are not obliged to submit further documents – eg, sale and purchase agreements. However, the FCO may ask for underlying agreements; in particular, in joint venture transactions.
It may also ask for other documents, such as market reports or case studies. Any accompanying docu - ments, such as annual reports (which are usually enclosed), may be submitted in English. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification If the notification is deemed incomplete, the FCO’s review period to clear or prohibit the transaction does not start to run. The FCO can also issue a fine of up to 1% of the undertaking’s total turnover for incomplete filings. In January 2013, the FCO imposed a personal fine of EUR90,000 on the principal shareholder of a German meat manufacturer for submitting incomplete information in the merger control proceedings regard - ing a planned acquisition of an abattoir. The review process may take longer than one month if the FCO declares the filing incomplete (in which case the one-month period only starts from the submission of the missing information). The FCO can impose fines for (negligently or deliber - ately) providing incorrect information in merger control filings. Fines can reach up to 1% of the undertaking’s total turnover. In October 2015, the FCO initiated divestiture pro - ceedings against Andechser and Söbbeke, which had submitted incorrect information in merger con - trol proceedings, and finally also imposed a fine of EUR90,000 on the parent company Bongrain Europe SAS (now Savencia SA) in 2016. 3.7 Review Process The German merger control regime provides for a two- stage review process, with an annual average of more than 95% of cases receiving clearance after the first stage (Phase I). Very few cases are analysed in in- depth proceedings during the second stage ( Haupt- prüfverfahren – Phase II), discussed further below. Phase I A Phase I review formally takes one calendar month following the filing of a complete notification. In prac - tice, clearance may be granted earlier (eg, two/three weeks following submission of the notification), but
260 CHAMBERS.COM
Powered by FlippingBook