GERMANY Law and Practice Contributed by: Daniela Seeliger, Christoph Barth and David-Julien dos Santos Goncalves, Linklaters
month following the service of the decision of the FCO. The regular review period for the Federal Minister amounts to four months. If the Federal Minister goes beyond the regular four-month period for authorising a concentra - tion that had been prohibited by the Federal Car - tel Office, they have to decide on the submission within six months. Additionally, another prolon - gation of the six-month period for a further two months is possible. While under previous rules, third parties were admitted to appeal proceedings if their interests were substantially affected by the decision, they now have to claim the violation of individual rights. The ministerial decision may also be fully appealed to the Higher Regional Court of Düs - seldorf. The proceedings for an application for ministerial permission do not preclude the appeal against the original decision of the FCO, the deadline for which starts to run only after service of the ministerial decision. 8.2 Typical Timeline for Appeals Regarding the typical timeline for an appeal, see the explanations in 8.1 Access to Appeal and Judicial Review . Although it is not uncom - mon to challenge an FCO prohibition decision, in practice, successful appeals are rather rare. One example is the Phonak (now Sonova)/GN Resound transaction that was prohibited by the FCO in April 2007. The Düsseldorf Higher Regional Court confirmed the FCO prohibition in November 2008, but it was finally overruled by the Federal Court of Justice in April 2010.
As an example of an unsuccessful case, in the EDEKA/Tengelmann case, EDEKA and Tengel - mann appealed in parallel the FCO’s decision (which only comprises judicial aspects) and applied for a Ministererlaubnis . The Düsseldorf Higher Regional Court rejected the appeal and confirmed the FCO’s prohibition of the merger (which did not have a practical effect because of the Ministererlaubnis ). 8.3 Ability of Third Parties to Appeal Clearance Decisions The right of appeal is also granted to third par - ties if the FCO decision directly and individu - ally affects their competition interests. A fur - ther prerequisite is that such third parties must have been party to the FCO proceedings. This requires that they at least applied to the FCO to be admitted as interveners and complied with all procedural requirements in this regard.
9. Foreign Direct Investment/ Subsidies Review
9.1 Legislation and Filing Requirements Germany has a separate foreign direct invest - ment control regime consisting of a mandatory sector investment review, a mandatory cross- sector notification review and a voluntary invest - ment review. Filings to the Federal Ministry for Economic Affairs and Energy have to be made in separate proceedings. Since 2017, the Ger - man legislature has substantially strengthened and extended the rules in Germany and there has been a significant increase in the number of filings. More than ever, it is imperative for deal - makers to consider foreign investment issues upfront in order to mitigate potential risks and/ or delays.
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