GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth, David-Julien dos Santos Goncalves and Kaan Gürer, Linklaters
this essentially depends on the case handler (work - load, availability, etc). In Phase I, the FCO will focus particularly on testing the market definition and market share information submitted by the parties using existing information on the relevant industry sector or by contacting market players and other stakeholders, such as trade asso - ciations. Should the FCO not be satisfied, during the Phase I period, that the proposed transaction does not sig - nificantly impede effective competition, it may enter into in-depth investigations. The parties are informed accordingly, usually by a formal letter. Phase II A review resulting in a Phase II investigation may take up to five months following the filing of a complete notification (up to six months if the parties submit a first proposal for conditions and obligations). The review process may also be extended subject to the parties’ consent and it is not uncommon for the FCO to express that it would strongly prefer an extension. 3.8 Pre-Notification Discussions With Authorities There is no formal pre-notification process and infor - mal pre-filing contact with the FCO is still not that typical. They are, however, commonly seen in very complex cases or cases where confidentiality is a crucial issue. For informal pre-filing contact, the FCO usually wants to receive at least the minimum information concern - ing the parties, the transaction and the market before entering into pre-notification discussions. 3.9 Requests for Information During the Review Process It is not uncommon that the FCO asks for addition - al information after receiving the filing documents. Detailed questionnaires can be burdensome, and providing answers may be subject to tight deadlines. The timetable would only “(re)start” if the parties had filed an incomplete notification and subsequently sub - mit the additional information. Further, the five-month
examination period is put on hold if the undertakings concerned do not provide the information requested by the FCO completely or in due time. 3.10 Accelerated Procedure There is no formal fast-track review process.
4. Substance of the Review 4.1 Substantive Test
The FCO prohibits concentrations that would lead to a significant impediment to effective competition (the “SIEC test”). As with European merger control law, the main example of the SIEC test is the creation or strengthening of a dominant position. The test allows, among others, the prohibition of anti-competitive con - centrations in oligopolistic markets, even if undertak - ings are not or will not become dominant. 4.2 Markets Affected by a Transaction FCO Analysis The FCO determines post-merger effects on the basis of a forecast detailing how the relevant market will develop within an average period of three to five years. This period may be shorter or, in exceptional cases, longer, depending on the specific characteristic of the market structure. Such post-merger effects have to be likely to occur. In cases where the post-merger effects result in a sig - nificant impediment to effective competition, the FCO has to demonstrate that they are caused by the trans - action. By contrast, the parties have to show that the transaction has pro-competitive effects that outweigh the relevant anti-competitive effects. Market Dominance Market dominance continues to play an important part in the analysis of a transaction. The GCA provides for presumptions of market dominance. A company is presumed to be dominant if it has a market share of at least 40%. A group of undertakings is presumed to be dominant if it consists of three undertakings or fewer that account for a combined market share of 50%, or if it consists
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