GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
dential. Market share information, however, may be replaced by ranges. Since 2009, the FCO has also published short summaries ( Fallberichte ) of important Phase I and Phase II cases on its website. 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions There is no recent case law on the imposition of remedies or prohibitions of concentrations in foreign-to-foreign transactions. However, in 2024, the FCO raised competition concerns in a Phase II case involving two US-based com - panies active in the crash test dummy industry, resulting in a withdrawal of the merger notifica - tion. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications A clearance decision does not automatically entail an exemption for ancillary restraints. There is also no separate notification procedure for ancillary restraints. The parties themselves have to assess any competition concerns in horizontal or vertical agreements. As is the case with joint ventures, the FCO may analyse ancillary restraints at a later stage, inde - pendent of the merger control process. In prac - tice, separate assessments during the merger control process appear to be more common. Generally, the FCO applies more or less the same principles that apply under EU competi - tion law, namely that ancillary restraints should be permitted if they are necessary and indispen -
sable to the successful implementation of the transaction.
7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties may apply to be admitted as inter - veners in the merger control proceedings at any stage of the process. They have to demonstrate that their economic interests will be substantially affected (directly or indirectly) by the decision. However, an application does not automatically result in an admission. The FCO has consider - able discretion in this regard. Although there are no legal provisions related to this issue, competitors, suppliers and custom - ers will usually be deemed to have an economic interest. Associations and trade unions will have to prove that their own interests, or at least the interests of their members, will be affected by the decision. Third parties that have been admitted as inter - veners have the right to be heard and to access the file. In practice, this applies mainly to Phase II investigations. However, prior to granting access to the file, any business secrets will be removed. 7.2 Contacting Third Parties The FCO usually contacts third parties and com - petitors during its review process to “market test” the transaction as well as the remedies. In most of the cases the FCO sends out question - naires. 7.3 Confidentiality The fact that a notification has been submitted is published on the FCO’s website. In general, this
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