GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
three to five years. This period may be shorter or, in exceptional cases, longer, depending on the specific characteristic of the market structure. Such post-merger effects have to be likely to occur. In cases where the post-merger effects result in a significant impediment to effective competi - tion, the FCO has to demonstrate that they are caused by the transaction. By contrast, the par - ties have to show that the transaction has pro- competitive effects that outweigh the relevant anti-competitive effects. Market Dominance Market dominance continues to play an impor - tant part in the analysis of a transaction. The ARC provides for presumptions of market domi - nance. A company is presumed to be dominant if it has a market share of at least 40%. A group of undertakings is presumed to be dominant if it consists of three undertakings or fewer that account for a combined market share of 50%, or if it consists of five undertakings or fewer that account for a combined market share of 66%. Presumptions can also be rebutted. To do so, the parties have to show either that competi - tion conditions allow for the assumption of con - tinuous substantial competition between the respective undertakings or that the (group of) undertaking(s) has no paramount market posi - tion over the remaining competitors. Presumptions do not keep the FCO from assum - ing a dominant market position in cases where market shares are lower than those discussed. In March 2012, the FCO published on its web - site extensive guidance on substantive merger control and the test of market dominance that
details its approach and shows a sharper focus on economic findings and concepts in the deci - sion-making process in line with the criteria of
the SIEC test. Special Rules
Special rules apply to concentrations in so- called de minimis markets. These are markets where goods or commercial services have been offered for at least five years and where sales of less than EUR20 million were generated in Germany in the last calendar year, unless the market is characterised by the offer of products or services free of charge. This assessment is carried out on a combined-market basis. While these concentrations have to be notified, the FCO cannot prohibit the transaction on the basis of a significant impediment to effective competi - tion in such markets. The de minimis rule does not apply to notifications filed on the basis of the The FCO is an independent body performing its own assessment of the case. However, in prac - tice, it also includes the decisional practice of the Commission and courts in its assessment. 4.4 Competition Concerns The FCO broadly distinguishes between hori - zontal mergers, vertical mergers and conglomer - ate mergers. Generally, it will investigate in each case the creation or strengthening of single or collective dominance (or, on the demand side, of buyer power in cases of horizontal mergers) and consider both co-ordinated and non-coor - dinated effects. Horizontal Mergers size-of-transaction threshold. 4.3 Reliance on Case Law In the case of horizontal mergers, in order to establish single dominance, the FCO investi - gates which factors determine the parties’ mar -
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