GERMANY Trends and Developments Contributed by: Andreas Rosenfeld and Sebastian Steinbarth, Redeker Sellner Dahs
Merger Control Following a Sector Inquiry In October 2024, the FCO presented its final reports on its sector inquiry into publicly assess - able charging infrastructure for electric vehicles. In February 2025, this was followed by the final reports on the FCO’s sector inquiry into refineries and fuel wholesale. Among the most anticipated aspects of these reports was whether the FCO would announce to subsequently make use of its new powers under Section 32f GCA (German Competition Act – Gesetz gegen Wettbewerbs- beschränkungen ), especially since peaks in gas and fuel prices were one of the driving factors to expand the FCO’s scope for action. Since November 2023, the FCO is empowered to take far-reaching measures to improve the conditions of competition directly after a sector inquiry and irrespective of any concrete com - petition law infringements having been identi - fied (so-called “New Competition Tool”). Part of the New Competition Tool is a new merger control mechanism which was introduced by the tenth amendment in Section 39a GCA (”Remon - dis clause”, now integrated into Section 32f(2) GCA). This new mechanism enables the FCO to require companies to notify all transactions regardless of the general thresholds for a period of three years following a sector inquiry in the relevant economic sector. This new mechanism was also introduced to compensate for negative effects of the reduction of the two domestic turn - over thresholds (see above) which led to a loss of merger control and to concentrative effects in particular markets, like in the waste manag - ing sector. Although these negative effects were predicted, the legislature reduced the scope of the merger control as an effective tool to avoid negative structural changes but introduced the new mechanism which only can come into effect once a market is already restricted or distorted.
set out to investigate the compatibility of Tel - efonica’s market behaviour in implementing the commitments with Article 101 and 102 TFEU. The Federal Court of Justice, which had to decide on the provisional enforceability of a FCO decision in this context, saw a clear indication that Article 21 paragraphs 2 and 3 of Regula - tion (EC) No 139/2004 as well as the principle of sincere co-operation do not allow for the review of market conduct pursuant to Article 101, 102 TFEU or national competition law that is consist - ent with commitments made to the European Commission. Instead, this examination was to be reserved solely for the European Commission itself. Although it expressly recognised the sole decision-making power of the ECJ in this matter, the Federal Court of Justice felt sure enough in this interpretation to defer the enforceability of the FCO’s decision until final judicial clarification. In a decision of 28 May 2024 regarding the so- called Rheinlandkooperation , the German Feder- al Court of Justice affirmed its established case law on the scope of judicial review of complaints by third parties against merger control clear - ances. Accordingly, a review only takes place for those markets in which the complainant can claim to be adversely affected. There is no right to a review of a clearance decision or commit - ments regarding markets in which the complain - ant is not active. The background to this case is a co-operation between RheinEnergie and the E.ON subsidiary Westenergie that was cleared subject to remedies including the sale of a cer - tain number of heating electricity customer con - tracts. A competitor in the market for heating electricity based its complaint on the effects on the market for charging electricity, among other things, but was unsuccessful at the Düsseldorf Higher Regional Court.
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