GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
competition concerns, the statement of objec - tions will also deal with possible remedies – even if the parties have not submitted a related pro - posal. However, as discussed above, the FCO cannot impose specific remedies on its own. It can only issue a clearance decision subject to conditions and obligations that have been offered by the parties. If the parties agree with the FCO on suitable remedies, the FCO will lay down the conditions and obligations in its final clearance decision, which will also be published in a non-confidential version. 5.5 Conditions and Timing for Divestitures In the case of a divestiture remedy, the parties must generally provide evidence that the dives - titure has been completed. It can, however, be sufficient for companies to take all necessary steps to initiate the transfer of ownership at a time when only the entry into the commercial register remains to be submitted, provided that an application for the entry has been lodged with the register. In appropriate cases, it may be sufficient for the fulfilment of the remedy to provide evidence that all contracts necessary for the divestment have been concluded in a legally binding way. In cas - es where this appears to be a suitable approach, this will normally be explicitly mentioned in the text of the remedy decision. Any merger control proceedings that may be required with regard to the acquisition of the divestment business by the buyer have to be concluded within the time limit for the implementation of the divestment. In so far as the remedies include other com - mitments in the form of a condition precedent, the parties have to prove that they have been
implemented as well before they are allowed to complete the transaction. If the divestiture commitment is a condition prec - edent (which is the common form) for the clear - ance decision, a period of six months should be sufficient to meet the requirements. The divesti - ture period should be as short as possible. How - ever, this will vary from case to case and will usually be set in the text of the remedy decision. An extension of the time limits provided by the remedies is only possible in exceptional cases. 5.6 Issuance of Decisions Phase I In Phase I cases, the FCO informs the parties by informal letter that the transaction does not fulfil the criteria for prohibition and therefore can be implemented. It does not issue a formal deci - sion. If the FCO does not inform the parties, within the one-month period of Phase I, that it has author - ised the transaction or entered into Phase II proceedings, the transaction is deemed to have been cleared. Phase II In Phase II proceedings, the FCO issues a formal decision prohibiting or authorising the transac - tion (unconditional or subject to conditions and obligations). If the FCO does not issue a decision within the relevant deadline, the transaction is deemed to have been cleared. The FCO publishes on its website that a con - centration has been cleared or prohibited. Clearance/prohibition decisions may only be published in Phase II proceedings. The parties will be asked to review the decision and to mark any business secrets. The FCO usually accepts that turnover and market information is confi -
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