GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
The latter scenario covers acquisitions of minor - ity stakes of less than 25% in another company. Competitively significant influence arises where the acquired interest confers upon the acquirer the ability to influence the commercial policy and, thus, to affect the competitive behaviour of the target company. The FCO determines on a case-by-case basis whether this has occurred. In doing so, it considers the rights resulting from the amount of acquired shares as well as so- called plus factors as identified in FCO case law. These plus factors are, for example, voting and veto rights, and board representation rights of the acquirer; other personal links between the parties; options and pre-emptive rights, and information rights of the acquirer; and separate agreements with the target company. Plus factors do not necessarily have to be ensured by binding agreements; it is sufficient if they provide the acquirer with a factual and lasting influence. 2.5 Jurisdictional Thresholds German merger control law provides for a turno - ver thresholds test and, since 2017, for a sub - sidiary transaction value test. In the course of the passage of the Competition Enforcement Act, which constitutes the 11th amendment of the ARC, a new filing obligation following sector inquiry was introduced in November 2023. Turnover Thresholds Test Pursuant to Section 35 (1) of the ARC, a trans - action falls within the scope of German merger control law if in the last financial business year: • the combined worldwide turnover of all par - ticipating undertakings exceeded EUR500 million; • one participating undertaking achieved a Ger - man turnover of more than EUR50 million;
• another participating undertaking achieved a German turnover of more than EUR17.5 mil - lion; and • the merger has an effect on the German market. Size-of-Transaction Test There is a size-of-transaction test that alterna - tively applies if the second domestic turnover threshold of EUR17.5 million is not met. A con - centration has to be notified if in the last financial business year: • the combined worldwide turnover of all par - ticipating undertakings exceeded EUR500 million; • one participating undertaking achieved a Ger - man turnover of more than EUR50 million; • neither the target nor another participating undertaking achieved a German turnover of more than EUR17.5 million; • the value of the transaction (the financial compensation) exceeds EUR400 million; and • the target has significant activities in Ger - many. An exemption to both threshold tests can apply to the credit and banking sector if companies do not provide end consumer services. The FCO Guidance on Transaction Value Thresh - olds for Mandatory Pre-merger Notification (published together with the Austrian Competi - tion Authority in July 2018 and updated in Janu - ary 2022) contains additional information on the interpretation of the new Section 35 (1a) of the ARC. There is an ongoing debate on how the requirement of “significant activities” of the tar - get company shall be interpreted and applied, especially in so-called mature markets. Most recently, the German Federal Court of Justice ( Bundesgerichtshof ) clarified that the require -
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