GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
disadvantages for competition); however, this is rare in practice. Public interest factors that have been accepted in the past are – eg, safeguarding the technical know-how of companies that are in financial or industrial difficulties, the potential for reductions of subsidies, the long-term security of energy supply, research in the health sector, the protection of employees through collective agreements and operational co-determination and, most recently, know-how and potential for innovation for energy turnaround and sustain - ability. For foreign direct investment and foreign sub - sidies rules see 9. Foreign Direct Investment/ Subsidies Review . 4.7 Special Consideration for Joint Ventures In principle, joint ventures may be subject to a twofold assessment, under both the merger con - trol provisions and the antitrust rules. Under the merger control regime, the SIEC test also applies to joint ventures. The antitrust rules will additionally come into play in the case of co-operative effects, which par - ticularly applies if the parent companies remain active in the joint venture’s fields of activity, or if they are competing in upstream or downstream markets. Only the extent to which the concen - tration, as such, creates anti-competitive con - cerns has to be assessed exclusively within the merger control process, which takes priority over the antitrust rules. Contrary to the EU merger control regime, merger clearance does not automatically entail an exemption for ancillary restraints. Moreover, the deadlines that are applicable with regard to the merger control procedure do not apply to proceedings relating to Section 1 of the ARC/
Article 101 of the Treaty on the Functioning of the European Union (TFEU). Therefore, the FCO usually gives priority to the merger control review of the joint venture. In addition, it aims to analyse the joint venture under the antitrust rules and to form at least an opinion on potential infringe - ments and possible exemptions in the course of the merger control proceedings. However, it is also not unusual for the FCO to postpone this assessment until a later stage, usually after the merger control process. Should the FCO conclude that co-operation in the joint venture violates Section 1 or the ARC/ Article 101 of the TFEU and that the conditions for an exemption are not fulfilled, the FCO may issue a prohibition decision, pursuant to Section 32 of the ARC. This is possible even after merg - er control clearance. Divergent decisions with regard to merger control and antitrust proceed - ings have, in fact, already occurred in practice. Following the introduction of the SIEC test, there have been discussions about whether such a twofold assessment is still possible. Clear - ance of a joint venture would imply that it does not significantly impede effective competition. Accordingly, it would be difficult to argue later, under Section 1 of the ARC/Article 101 TFEU, that the joint venture impedes competition and therefore should be dissolved. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The FCO does have the power to prohibit or interfere with a transaction. It may do so in the course of the regular merger control process or
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