GERMANY Law and Practice Contributed by: Marc Löbbe, Michaela Balke, Oliver Schröder and Martin Kolbinger, SZA Schilling, Zutt & Anschütz
2.4 Antitrust Regulations The merger control provisions of the German Act against Restraints of Competition ( Gesetz gegen Wettbewerbsbeschränkungen ) apply if transac - tions qualify as concentrations and the parties meet certain thresholds. If a transaction is sub - ject to German merger control, it must be noti - fied to the German Federal Cartel Office ( Bun- deskartellamt ) and must not be consummated before clearance has been obtained. It is a particular feature of German merger con - trol law that concentrations subject to review are not limited to control acquisitions. For instance, acquisitions of 25% or 50% of the voting rights or capital interests also qualify as concentra - tions, as do acquisitions of a competitively sig - nificant influence. The notification thresholds are met if: • the combined aggregate worldwide turnover of the parties involved exceeds EUR500 mil - lion; • the German turnover of at least one party involved exceeds EUR50 million; and • the German turnover of another party involved exceeds EUR17.5 million. The EUR50 million and EUR17.5 million thresh - olds were increased in January 2021 from EUR25 million and EUR5 million, respectively. If the last threshold (ie, a German turnover exceeding EUR17.5 million) is not met by the target or another party, a notification will still be required if the value of the consideration for the transaction exceeds EUR400 million and the tar - get has significant activities in Germany. Aside from the German antitrust regulator, other national antitrust authorities may be competent
tion obligations apply for 27 business sectors involved in critical infrastructure or critical tech - nology: the acquisition of voting rights reaching or exceeding 10%, 20%, 25%, 40%, 50% or 75% for seven of these sectors, or 20%, 25%, 40%, 50% or 75% for the other 20 sectors, or of assets constituting an essential or definable part of the operations of a German undertaking, is subject to a mandatory FDI filing and a stand - still obligation. Even outside these 27 sectors, the acquisition of at least 25%, 40%, 50% or 75% of voting rights or of assets constituting an essential or definable part of the operations of a German undertaking by investors from outside the EU/EFTA can be reviewed by the German government to deter - mine whether such acquisition may potentially affect public order or security in Germany or other EU member states. FDI control law now also covers the acquisition by a non-EU/EFTA investor of an “effective stake in the control” of a German undertaking in anoth - er way, particularly an acquisition of voting rights nominally remaining below the relevant thresh - old combined with additional rights effectively resulting in influence corresponding to a share of voting rights meeting the relevant threshold. The German government may ultimately prohibit such acquisitions or impose obligations to safe - guard public order or security. With the prohi - bition of a multibillion-euro non-EU acquisition (Global Wafers/Siltronic) in 2022, as well as the prohibitions of, inter alia, the Heyer Medical and Elmos transactions, FDI controls will continue to play an ever greater rule in the practice of M&A law.
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