GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
2.15 Circumstances Where Implementation Before Clearance Is Permitted Apart from exceptions in relation to public takeo - vers or a specific authorisation by the FCO, par - ties are prohibited from closing the transaction before clearance, which usually includes carve- out solutions. Only in very exceptional circum - stances may such scenarios be conceivable, and only then if separation and completion will, beyond any doubt, have no impact on the Ger - man market. In any case, all carve-out solutions should be carefully prepared, analysed and discussed, together with the FCO, prior to implementation. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There is no formal deadline for filing a notifica - tion. 3.2 Type of Agreement Required Prior to Notification A binding agreement is not a prerequisite for fil - ing. Parties only have to demonstrate a good faith intention to implement the transaction. 3.3 Filing Fees The FCO charges an administrative fee on the basis of a general fee regulation act. The FCO has discretion in determining the amount, and various criteria are considered in this regard. The main factors that are considered are: • the parties’ German turnover;
• the FCO’s (personnel) expenses (if the trans - action required a detailed or simple investiga - tion); and • the economic relevance of the case, including the parties’ shares in the relevant markets. The maximum statutory amount is EUR50,000 or, in exceptionally complex cases, EUR100,000. In practice, fees usually vary between EUR5,000 and EUR15,000 (simple Phase I clearances), or between EUR10,000 and EUR25,000 (complex Phase I cases), or exceed EUR20,000 (Phase II investigations). Usually, the administrative fee is payable within one month following clearance of the transac - tion. 3.4 Parties Responsible for Filing In theory, the acquirer and the target are obliged to notify in the event of an acquisition. If shares or assets are being acquired, the seller is also subject to a notification obligation. In practice, however, the FCO is usually satis - fied if one of the parties (normally the acquirer) submits a notification (ideally but not necessar - ily in co-ordination with the other parties that are obliged to notify). The other parties may also “join” the acquirer’s notification by submitting a one-line letter. It is also possible (but not common) to notify jointly. 3.5 Information Included in a Filing The FCO publishes as guidance a filing form on its website; however, this form is not mandatory and is rarely used in practice. Notifications are usually filed in the form of a letter to the FCO. The following information is mandatory for a complete filing, which triggers the deadlines.
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