GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth, David-Julien dos Santos Goncalves and Kaan Gürer, Linklaters
7.3 Confidentiality The fact that a notification has been submitted is pub - lished on the FCO’s website. In general, this happens a few days after the filing. Only in very rare cases has the FCO been willing to postpone the publication and only then under very special circumstances. Besides file number and responsible decision division, the FCO publishes the names of the parties, the date of the filing and the relevant industry sector. The fact of an initiation of Phase II proceedings is published as well. At the end of the proceedings, the FCO will also publish the result of its analysis – ie, clearance (unconditional or subject to conditions and obliga - tions) or prohibition. Generally, the FCO is obliged to ensure that confi - dential commercial information, including business secrets, that is obtained during the merger control process remains so. Interveners may have limited access to the file, but not to the business secrets of the parties. Phase II decisions are published in a non-confidential version that has been agreed with the parties. 7.4 Co-Operation With Other Jurisdictions The FCO is, among others, part of the Internation - al Competition Network (currently the ICN Steering Group is chaired by Andrea Marván Saltiel, Chair Commissioner of the Competition Authority Mexico, following FCO President Andreas Mundt’s term from 2013 to May 2025), the European Competition Network (ECN) and the network of the European Competition Authorities (ECA). The ECA is a forum for discussion of all competition law-related matters between the NCAs within the EEA as well as the Commission and the European Free Trade Association (EFTA) supervisory authority. This discussion includes the exchange of information on all merger cases that are notifiable in more than one ECA country (multiple filings). 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Phase II Appeals The parties may file an appeal against Phase II deci - sions of the FCO to the Higher Regional Court of Düs -
The parties themselves have to assess any competi - tion concerns in horizontal or vertical agreements. As is the case with joint ventures, the FCO may ana - lyse ancillary restraints at a later stage, independent of the merger control process. In practice, separate assessments during the merger control process appear to be more common. Generally, the FCO applies more or less the same prin - ciples that apply under EU competition law, namely that ancillary restraints should be permitted if they are necessary and indispensable to the successful imple - mentation of the transaction. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties may apply to be admitted as interven - ers in the merger control proceedings at any stage of the process. They have to demonstrate that their eco - nomic interests will be substantially affected (directly or indirectly) by the decision. However, an application does not automatically result in an admission. The FCO has considerable discretion in this regard. Although there are no legal provisions related to this issue, competitors, suppliers and customers will usu - ally be deemed to have an economic interest. Asso - ciations and trade unions will have to prove that their own interests, or at least the interests of their mem- bers, will be affected by the decision. Third parties that have been admitted as interveners have the right to be heard and to access the file. In practice, this applies mainly to Phase II investigations. However, prior to granting access to the file, any busi -
ness secrets will be removed. 7.2 Contacting Third Parties
The FCO usually contacts third parties and competi - tors during its review process to “market test” the transaction as well as the remedies. In most of the cases the FCO sends out questionnaires.
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