GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Phase II Appeals The parties may file an appeal against Phase II decisions of the FCO to the Higher Regional Court of Düsseldorf within one month follow - ing the service of the decision. The appeal can be made on both legal and factual grounds, including new facts and evidence. The period of the appeal proceedings may vary significantly depending on the case, but an average duration of one to three years should be expected. The decision of the Higher Regional Court may be appealed to the Federal Court of Justice within one month following the service of that decision. This appeal can only be made on legal grounds, and the Higher Regional Court has to have permitted such appeal. The decision not to permit a legal appeal may be appealed to the Federal Court of Justice as well. The proceedings of the Federal Court of Justice may vary in terms of duration, but again it might take one to three years before a final decision is reached. In the event of mergers between statutory health insurers, the same rules for an appeal apply, with the exception that the Social Courts have com - petence. Applications to the Federal Minister for Economic Affairs and Energy In the event that the FCO prohibits a concentra - tion or orders the unwinding of a non-notified concentration, the parties may also apply to the Federal Minister for Economic Affairs and Energy to request permission to implement the transac - tion. The deadline for such application is one
happens a few days after the filing. Only in very rare cases has the FCO been willing to postpone the publication and only then under very special circumstances. Besides file number and responsible decision division, the FCO publishes the names of the parties, the date of the filing and the relevant industry sector. The fact of an initiation of Phase II proceedings is published as well. At the end of the proceedings, the FCO will also publish the result of its analysis – ie, clearance (uncon - ditional or subject to conditions and obligations) or prohibition. Generally, the FCO is obliged to ensure that confidential commercial information, including business secrets, that is obtained during the merger control process remains so. Interveners may have limited access to the file, but not to the business secrets of the parties. Phase II deci - sions are published in a non-confidential version that has been agreed with the parties. 7.4 Co-Operation With Other Jurisdictions The FCO is, among others, part of the Interna - tional Competition Network (currently the ICN Steering Group is chaired by Andrea Marván Saltiel, Chair Commissioner of the Competi - tion Authority Mexico, following FCO Presi - dent Andreas Mundt’s term from 2013 to May 2025), the European Competition Network (ECN) and the network of the European Competition Authorities (ECA). The ECA is a forum for dis - cussion of all competition law-related matters between the NCAs within the EEA as well as the Commission and the European Free Trade Asso - ciation (EFTA) supervisory authority. This discus - sion includes the exchange of information on all merger cases that are notifiable in more than one ECA country (multiple filings).
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