GERMANY Trends and Developments Contributed by: Andreas Rosenfeld and Sebastian Steinbarth, Redeker Sellner Dahs
and development company, for example in the phar - maceutical or technology sector, where the turnover potential will only be realised after the company has been sold if their business model specifically focusses on developing technologies or products. At a second stage, the Düsseldorf Higher Regional Court assessed whether the target companies’ oper - ations in Germany were substantial. In the Meta / Kustomer case, the court based this assessment on the proportion of the target company’s business in Germany relative to its global business. In the Adobe cases, the court most recently based its assessment primarily on the proportion of users in Germany rela - tive to the potential user base in Germany and implied that the threshold above which operations can be assumed to be substantial could be approximately 1%. The FCO appealed against all three decisions of the Düsseldorf Higher Regional Court. On 17 June 2025, the Federal Court of Justice ruled for the first time on the transaction value threshold by overturning the earlier decision of the Düsseldorf Higher Regional Court in the Meta / Kustomer case. In its view, the scope of application of the transaction value threshold should be interpreted broadly. It held that the decisive criterion for determining whether a target company has “operations in Germany” is whether its operations have a connection to Germa - ny that could generally give rise to competitive risks affecting markets located (also) in Germany. Accord - ingly, it is necessary to assess the current competitive potential of the target company, which could be real - ised in Germany following the merger. With respect to the Meta / Kustomer case, the Federal Court of Justice ruled that the discrepancy between the high purchase price paid and the low turnover generated in Germany already indicates that the target company’s turnover does not adequately reflect its competitive potential, and that Section 35 (1a) GWB is therefore applicable on the merits. While this decision provides additional guidelines for determining whether a target has substantial opera - tions in Germany, plenty of legal uncertainty remains in practice. It especially remains unclear how the substantiveness of a target company’s operations in Germany should be determined in cases other than
data processing cases. Further rulings by the German Federal Court of Justice on the topic are therefore to be expected in the near future. In this regard, Andreas Mundt, President of the FCO, has also stated that he considers legal certainty regarding the transaction value threshold to be of central importance and sees a need for action in this area, for example in the form of introducing a supplementary “call-in system” based on clear thresholds. Meanwhile, the German Monopo - lies Commission, an independent expert committee, advocated amending the wording of Section 35 (1a) GWB (“likely future domestic activities”) in the inter - est of broadening the scope of the transaction value threshold. 12th Amendment to the GCA In June 2026, the German Ministry for Economic Affairs and Energy published a draft bill for the 12th amendment to the GCA. The aim is a more efficient application of competition law, to speed up proceed - ings and to reduce bureaucracy. The proposal con - tains a far-reaching reform package with a focus on merger control. The draft amendment provides for an increase of all three turnover thresholds: the global turnover thresh - old from EUR500 million to EUR750 million, the first domestic turnover threshold from EUR50 million to EUR75 million and the second domestic turnover threshold from EUR17.5 million to EUR20 million. In 2021, only the two domestic thresholds were raised for the last time (from EUR25 million to EUR50 million and from EUR5 million to EUR17.5 million). According to the draft bill, the increase will lead to a decline in notifications of approximately 13–14%, which would correspond to around 120 cases per year and one Phase II procedure. Alongside the changes to the turnover thresholds, there will be a reform of the transaction value threshold. The scope of application will be extended to acquisi - tions where the target company does not yet carry out any significant domestic business but is expected to commence such activities. This is intended to cover certain remaining scenarios in which it was previously not possible to assess potential “killer acquisitions”, particularly in the digital sector.
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