GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth, David-Julien dos Santos Goncalves and Kaan Gürer, Linklaters
to conditions and obligations that have been offered by the parties. If the parties agree with the FCO on suitable remedies, the FCO will lay down the conditions and obligations in its final clearance decision, which will also be pub - lished in a non-confidential version. 5.5 Conditions and Timing for Divestitures In the case of a divestiture remedy, the parties must generally provide evidence that the divestiture has been completed. It can, however, be sufficient for companies to take all necessary steps to initiate the transfer of ownership at a time when only the entry into the commercial register remains to be submitted, provided that an application for the entry has been lodged with the register. In appropriate cases, it may be sufficient for the fulfil - ment of the remedy to provide evidence that all con - tracts necessary for the divestment have been con - cluded in a legally binding way. In cases where this appears to be a suitable approach, this will normally be explicitly mentioned in the text of the remedy decision. Any merger control proceedings that may be required with regard to the acquisition of the divestment busi - ness by the buyer have to be concluded within the time limit for the implementation of the divestment. In so far as the remedies include other commitments in the form of a condition precedent, the parties have to prove that they have been implemented as well before they are allowed to complete the transaction. If the divestiture commitment is a condition precedent (which is the common form) for the clearance deci - sion, a period of six months should be sufficient to meet the requirements. The divestiture period should be as short as possible. However, this will vary from case to case and will usually be set in the text of the remedy decision. An extension of the time limits pro - vided by the remedies is only possible in exceptional cases. 5.6 Issuance of Decisions Phase I In Phase I cases, the FCO informs the parties by infor - mal letter that the transaction does not fulfil the criteria
for prohibition and therefore can be implemented. It does not issue a formal decision. If the FCO does not inform the parties, within the one- month period of Phase I, that it has authorised the transaction or entered into Phase II proceedings, the transaction is deemed to have been cleared. Phase II In Phase II proceedings, the FCO issues a formal deci - sion prohibiting or authorising the transaction (uncon - ditional or subject to conditions and obligations). If the FCO does not issue a decision within the relevant deadline, the transaction is deemed to have been cleared. The FCO publishes on its website that a concentration has been cleared or prohibited. Clearance/prohibition decisions may only be published in Phase II proceed - ings. The parties will be asked to review the decision and to mark any business secrets. The FCO usually accepts that turnover and market information is con - fidential. Market share information, however, may be replaced by ranges. Since 2009, the FCO has also published short sum - maries ( Fallberichte ) of important Phase I and Phase II cases on its website. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions There is no recent case law on the imposition of reme - dies or prohibitions of concentrations in foreign-to-for - eign transactions. However, in 2024, the FCO raised competition concerns in a Phase II case involving two US-based companies active in the crash test dummy industry, resulting in a withdrawal of the merger noti - fication. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications A clearance decision does not automatically entail an exemption for ancillary restraints. There is also no separate notification procedure for ancillary restraints.
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