GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
3.6 Penalties/Consequences of Incomplete Notification
• A description of the transaction, including, in the case of an acquisition of shares, the size of the interest acquired and of the total inter - est held. • Information on the participating undertakings – ie, worldwide, European and German group turnover information, and a list of subsidi- aries, including, for both the participating undertakings and the subsidiaries, informa - tion on registered seat and business activi - ties; if the size-of-transaction test applies (Section 35 (1)(a) ARC), parties have to submit information on the transaction value and the relevant calculation methods. • Information on market shares reaching at least 20% within Germany (national or region - al markets) and underlying sources; although not explicitly required, it is best practice to submit general market share information for the relevant market affected by the transac - tion (which can be defined wider than Germa - ny) and to provide names of the parties’ main competitors and their market share estimates. • Indication of a person authorised to accept services in Germany if the registered seat of a participating undertaking is not located in Germany. Submitting a Filing The filing has to be submitted in German. Par - ties are not obliged to submit further documents – eg, sale and purchase agreements. However, the FCO may ask for underlying agreements; in particular, in joint venture transactions. It may also ask for other documents, such as market reports or case studies. Any accompany - ing documents, such as annual reports (which are usually enclosed), may be submitted in Eng - lish.
If the notification is deemed incomplete, the FCO’s review period to clear or prohibit the trans - action does not start to run. The FCO can also issue a fine of up to 1% of the undertaking’s total turnover for incomplete filings. In January 2013, the FCO imposed a personal fine of EUR90,000 on the principal shareholder of a German meat manufacturer for submitting incomplete informa - tion in the merger control proceedings regarding a planned acquisition of an abattoir. The review process may take longer than one month if the FCO declares the filing incomplete (in which case the one-month period only starts from the submission of the missing information). 3.7 Penalties/Consequences of Inaccurate or Misleading Information The FCO can impose fines for (negligently or deliberately) providing incorrect information in merger control filings. Fines can reach up to 1% of the undertaking’s total turnover. In October 2015, the FCO initiated divestiture proceedings against Andechser and Söbbeke, which had submitted incorrect information in merger control proceedings, and finally also imposed a fine of EUR90,000 on the parent company Bongrain Europe SAS (now Savencia SA) in 2016. 3.8 Review Process The German merger control regime provides for a two-stage review process, with an annual average of more than 95% of cases receiving clearance after the first stage (Phase I). Very few cases are analysed in in-depth proceedings during the second stage ( Hauptprüfverfahren – Phase II), discussed further below.
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