GERMANY Trends and Developments Contributed by: Andreas Rosenfeld and Sebastian Steinbarth, Redeker Sellner Dahs
of the two Phase II investigations initiated in 2025, was ongoing for only 2,5 months at the point of the withdrawal. The investigation leading to the prohibi - tion of the takeover of Vion slaughterhouses by Tön - nies lasted 7.8 months, which corresponds to the 7.8 months peak of the average duration of Phase II inves - tigations in 2022. The second Phase II investigation, which was initiated in 2025 and lasted 7.4 months, led to the approval of the takeover of road-construction group Stumpp by Strabag in March 2026. The clear - ance is conditional on Stumpp selling one of the two asphalt-mixing plants to an independent third party to ensure that sufficient alternatives remain available in the market. The duration of Phase I proceedings is generally less than the permitted period of one month and the FCO regularly issues clearances prior to the end of the deadline. Extended Obligation to Notify In November 2025, the FCO obliged the Rethmann Group, to which the waste management company Remondis belongs, to notify future mergers in spe - cific economic sectors prior to their implementa - tion for a period of three years. With this decision, for the first time the FCO made use of Section 32f (2) GCA as instrument for capturing below-threshold mergers in highly concentrated markets in particular to avoid gaps in competition protection on local or regional markets with respect to successive acquisi - tions (“roll-up strategy”). The Rethmann Group already announced its intentions of challenging the decision in court. The possibility of imposing an extended obligation to notify was introduced in 2021 in Section 39a GCA with the intention to make so-called “killer acquisi - tions” subject to merger control. In 2023, the instru - ment was incorporated into Section 32f(2) GWB with slightly modified requirements. According to the background paper “Merger control in transition – New instruments and changing framework conditions?”, which was published by the FCO in October 2025, the extended obligation to notify has proved cumbersome in practice. Against this background, the question is discussed whether the extended obligation to notify pursuant to Section 32f(2) GCA remains proportion -
ate to its purpose, or whether a realignment of this provision could make merger control in the relevant economic sectors more precise while reducing costs
for both companies and authorities. Merger Review by German Courts
In 2025, the transaction value threshold in Section 35 (1a) GCA was the subject of three court cases – Meta / Kustomer , Adobe / Marketo and Adobe / Magento . In the Meta / Kustomer case, the FCO decided that the transaction was caught by merger control, which the parties to the merger challenged in court. In the Adobe / Marketo and Adobe / Magento cases, the FCO initially initiated dissolution proceedings. Although the transactions had to be notified, the proceedings were discontinued since there were no substantive concerns. The FCO subsequently issued decisions on costs, which the parties appealed. In all three cases, the Düsseldorf Higher Regional Court ruled that the transactions were not subject to merger control because the target had no “substantial operations in Germany” within the meaning of Section 35 (1a)(4) GCA. The court first examined whether the target companies’ turnover reflected their competitive potential. In the court’s view, a target company’s past turnover generally reflects its competitive potential. Accordingly, Section 35 (1a) GWB shall not apply if the target company has offered a market-ready product in exchange for payment for many years and has gener - ated high sales revenues worldwide. However, as an exception to this, Section 35 (1a)(4) GWB shall apply if the target company’s low turnover in Germany coin - cides with a high global purchase price and one of the following categories of cases, which the legislature had in mind, applies: (i) the target company pursues a novel, innovative business model in the digital sector, which is, for the successful market launch, depend - ent on offering the service free of charge or at a low price in order to attract a large number of users and thereby generate direct network effects; (ii) the target company pursues a business model in multi-sided markets which is designed in such a way that a ser - vice is provided free of charge to one user group and is indirectly financed through payments from other user groups which are willing to pay because they benefit from access to other users (indirect network effects); or (iii) the target company is a private research
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