GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
Phase I A Phase I review formally takes one calendar month following the filing of a complete notifica - tion. In practice, clearance may be granted ear - lier (eg, two/three weeks following submission of the notification), but this essentially depends on the case handler (workload, availability, etc). In Phase I, the FCO will focus particularly on testing the market definition and market share information submitted by the parties using exist - ing information on the relevant industry sector or by contacting market players and other stake - holders, such as trade associations. Should the FCO not be satisfied, during the Phase I period, that the proposed transaction does not significantly impede effective compe - tition, it may enter into in-depth investigations. The parties are informed accordingly, usually by a formal letter. Phase II A review resulting in a Phase II investigation may take up to five months following the filing of a complete notification (up to six months if the parties submit a first proposal for conditions and obligations). The review process may also be extended subject to the parties’ consent and it is not uncommon for the FCO to express that it would strongly prefer an extension. 3.9 Pre-Notification Discussions With Authorities There is no formal pre-notification process and informal pre-filing contact with the FCO is still not that typical. They are, however, commonly seen in very complex cases or cases where con - fidentiality is a crucial issue. For informal pre-filing contact, the FCO usually wants to receive at least the minimum informa -
tion concerning the parties, the transaction and the market before entering into pre-notification discussions. 3.10 Requests for Information During the Review Process It is not uncommon that the FCO asks for addi - tional information after receiving the filing docu - ments. Detailed questionnaires can be burden - some, and providing answers may be subject to tight deadlines. The timetable would only “(re)start” if the parties had filed an incomplete notification and subse - quently submit the additional information. Fur - ther, the five-month examination period is put on hold if the undertakings concerned do not provide the information requested by the FCO completely or in due time. 3.11 Accelerated Procedure There is no formal fast-track review process. The FCO prohibits concentrations that would lead to a significant impediment to effective competition (the “SIEC test”). As with European merger control law, the main example of the SIEC test is the creation or strengthening of a domi - nant position. The test allows, among others, the prohibition of anti-competitive concentrations in oligopolistic markets, even if undertakings are not or will not become dominant. 4.2 Markets Affected by a Transaction FCO Analysis The FCO determines post-merger effects on the basis of a forecast detailing how the relevant market will develop within an average period of 4. Substance of the Review 4.1 Substantive Test
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