GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
recognised accounting standards such as IFRS. Thresholds are related to turnovers and thus are not asset-based. Special Turnover Calculation Rules Special turnover calculation rules apply to: • banks, credit institutions, building societies and insurance companies (premium income – the same rules as in the European Merger Control Law); • undertakings wholly or partly engaged in the distribution of goods (only three-quarters of the turnover resulting from distribution is taken into consideration); and • undertakings wholly or partly engaged in the publication, production or distribution of newspapers or periodicals and broadcasting companies (the turnover must be multiplied by four). 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds For the assessment of turnover thresholds, the group turnover of the participating undertakings in the last financial business year must be con - sidered. Acquirer and Target Participating undertakings are usually the acquirer (including its parent companies and its subsidiaries) and the target (either the legal entity and its subsidiaries or the business/assets to be acquired). Thus, on the acquirer’s side, all undertakings controlling the acquirer and all undertakings controlled by the acquirer form a group and have to be considered for the calcula - tion of turnover.
On the target’s side, only turnover achieved by the entities controlled by the target and the tar - get’s turnover are taken into account. If parts of one or more undertakings are acquired, only the turnover relating to those parts is con - sidered when calculating the turnover on the seller’s side. This does not, however, apply if the seller keeps control of 25% or more of the shares. Joint Venture Company In the case of a joint venture company, the turno - ver of all parent companies that, following the concentration, will either jointly control the joint venture or have a shareholding of at least 25% is relevant with a view to the turnover thresholds. Seller The turnover of the seller is generally not taken into account. However, this does not apply if the seller keeps control of 25% or more of the shares in the target. In these cases, the seller is a participating undertaking within the meaning of German merger control. This is, in particular, relevant for the setting up of a joint venture with Turnover information has to be provided for the last business year. However, with respect to sub - sequent acquisitions and divestments, the date of the notification is relevant for the basis of con - solidation. All acquisitions, divestments or busi - ness closures that were implemented up until the date of notification of the intended transac - tion have to be considered. When calculating the relevant turnover, it has to be determined what the turnover of the group (as it stands at the notification date) would have been in the last completed business year. no previous business activities. Scope of Turnover Information
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