GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth, David-Julien dos Santos Goncalves and Kaan Gürer, Linklaters
seldorf within one month following the service of the decision. The appeal can be made on both legal and factual grounds, including new facts and evidence. The period of the appeal proceedings may vary signifi - cantly depending on the case, but an average duration of one to three years should be expected. The decision of the Higher Regional Court may be appealed to the Federal Court of Justice within one month following the service of that decision. This appeal can only be made on legal grounds, and the Higher Regional Court has to have permitted such appeal. The decision not to permit a legal appeal may be appealed to the Federal Court of Justice as well. The proceedings of the Federal Court of Justice may vary in terms of duration, but again it might take one to three years before a final decision is reached. In the event of mergers between statutory health insurers, the same rules for an appeal apply, with the exception that the Social Courts have competence. Applications to the Federal Minister for Economic Affairs and Energy In the event that the FCO prohibits a concentration or orders the unwinding of a non-notified concentration, the parties may also apply to the Federal Minister for Economic Affairs and Energy to request permission to implement the transaction. The deadline for such application is one month following the service of the decision of the FCO. The regular review period for the Federal Minister amounts to four months. If the Federal Minister goes beyond the regular four- month period for authorising a concentration that had been prohibited by the FCO, they have to decide on the submission within six months. Additionally, anoth - er prolongation of the six-month period for a further two months is possible. While under previous rules, third parties were admit - ted to appeal proceedings if their interests were sub - stantially affected by the decision, they now have to claim the violation of individual rights. The ministerial decision may also be fully appealed to the Higher Regional Court of Düsseldorf.
The proceedings for an application for ministerial per - mission do not preclude the appeal against the origi - nal decision of the FCO, the deadline for which starts to run only after service of the ministerial decision. 8.2 Typical Timeline for Appeals Regarding the typical timeline for an appeal, see the explanations in 8.1 Access to Appeal and Judicial Review . Although it is not uncommon to challenge an FCO prohibition decision, in practice, success - ful appeals are rather rare. One example is the Pho - nak (now Sonova)/GN Resound transaction that was prohibited by the FCO in April 2007. The Düsseldorf Higher Regional Court confirmed the FCO prohibition in November 2008, but it was finally overruled by the Federal Court of Justice in April 2010. As an example of an unsuccessful case, in the EDEKA / Tengelmann case, EDEKA and Tengelmann appealed in parallel the FCO’s decision (which only comprises judicial aspects) and applied for a Ministererlaubnis . The Düsseldorf Higher Regional Court rejected the appeal and confirmed the FCO’s prohibition of the merger (which did not have a practical effect because of the Ministererlaubnis ). 8.3 Ability of Third Parties to Appeal Clearance Decisions The right of appeal is also granted to third parties if the FCO decision directly and individually affects their competition interests. A further prerequisite is that such third parties must have been party to the FCO proceedings. This requires that they at least applied to the FCO to be admitted as interveners and complied with all procedural requirements in this regard. 9. Foreign Direct Investment/Subsidies Review 9.1 Legislation and Filing Requirements Germany has a separate foreign direct investment control regime consisting of a mandatory sector- specific investment review, a mandatory cross-sec - tor notification review and a voluntary investment review, which are governed by the Foreign Trade and Payments Act ( Außenwirtsschaftsgesetz , AWG) and the Foreign Trade and Payments Ordinance ( Außen-
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