Request an examination of the proposed merger of two companies
Description
Mergers between companies are examined by the Bundeskartellamt under certain conditions.
Disadvantages for competition are thus to be avoided. The Bundeskartellamt always reviews the merger if the companies exceed certain turnover thresholds or if a particularly high purchase price is paid for the transaction.
The Bundeskartellamt prohibits the merger only if the merger would significantly impede effective competition. This is particularly the case where the concentration is likely to create or strengthen a dominant position.
Mergers of companies must be notified to the Bundeskartellamt and may not be implemented during the entire investigation procedure ("prohibition of enforcement"). Otherwise, the contracts are ineffective, a fine can be imposed or the merger can be unbundled again. The purpose of the ex ante check is to prevent concentrations that are problematic from competing to have to be terminated retrospectively. In order for companies to have certainty as to when they are allowed to merge, the law provides for tight deadlines for the examination procedure.
Imminent restrictions on competition can also be partially eliminated by the undertakings concerned making commitments. For example, a company may be required to sell certain parts of the company or business areas to competitors if there are corresponding commitments.
The Bundeskartellamt has far-reaching investigative powers in order to obtain a comprehensive picture of the conditions of competition. The Authority may request all relevant documents and business data from undertakings and associations of undertakings. It also conducts comprehensive market surveys and conducts discussions with individual market participants.
Under certain conditions, a notification to the Bundeskartellamt is not necessary. This is the case if
- the European Commission is primarily responsible as the competition authority (which is determined on the basis of turnover thresholds)
- the concentration has no domestic effect, i.e. if it does not have an appreciable and direct effect on the competitive situation in Germany (this is independent of a company headquarters in Germany) or
- the sales thresholds are not reached or the purchase price is below EUR 400 million.
The Bundeskartellamt carries out merger control if:
- there is no primary competence of the European Commission as a competition authority,
- the participating companies have a total worldwide turnover of more than EUR 500 million and
- at least one participating company generates domestic sales of more than EUR 25 million and another company with a turnover of at least EUR 5 million
- or the purchase price (value of the consideration) for the merger amounts to more than EUR 400 million and the company to be acquired is active to a significant extent in Germany.
For this purpose, a notification of the parties to the merger is required.
- simple letter with the following information:
- the form of the merger; in the case of acquisition of shares, also the amount of the acquired and the total. participation held (capital and voting rights)
- Company, place of establishment / registered office
- Type of business operation (industry, economic level)
- Sales revenues (last financial year, worldwide, EU-wide and Germany-wide); if necessary. also information on the consideration (with a purchase price of more than EUR 400 million) and the nature and extent of the domestic activity of the acquired
- Market shares incl. calculation / estimation basis, if (largely) more than 20 % throughout Germany
- Group relationships, dependencies and shareholdings
- Designation of a person authorised to serve in Germany, provided that the company's registered office is not located in Germany
Note: Purchasers and acquirers must provide information on all seven points mentioned. In the case of an acquisition of shares or assets, the seller must also provide the information on No. 2 and No. 7. If the participating companies (i.e. acquirers, acquirers and, in the case of a share or asset acquisition, also the seller) are affiliated companies (i.e. they are controlled or dependent within the meaning of the German Stock Corporation Act), the information on Nos. 2 and 3 must be provided for all affiliated companies and the information on Nos. 4., 5. and 6. for the entire group of companies.
Examination of the merger: Up to EUR 50,000 (depending on the economic significance of the case and the personnel and material effort for the authority); exceptionally up to EUR 100,000.
A notifiable concentration may not be implemented before
- the statutory review period of one month has expired without the Bundeskartellamt having initiated the main investigation procedure, or
- the four-month period for the main examination procedure has expired,
- or the Bundeskartellamt has cleared the merger.
- First exam information: maximum 1 month
- Examination period: maximum 4 months (extension of deadline possible with the consent of the companies)
Forms: none
Online procedure possible: no
Written form required: yes, DE-Mail or e-mail with qualified electronic signature also possible (but simple e-mail is not enough)
Personal appearance required: no
Register a planned merger of your company with an informal letter:
- Create a letter with the necessary information and print it out.
- Send the signed letter to the Bundeskartellamt; DE-Mail or e-mail with qualified electronic signature also possible (but simple e-mail is not enough).
- Upon receipt of the full notification by the Bundeskartellamt, the investigation procedure begins.
- The authority has time within the deadline to make an assessment as to whether the project needs to be examined in more detail or whether it can be released.
- If there are indications of competitive problems that cannot be resolved within the preliminary investigation procedure, a formal main investigation procedure is initiated.
The Bundeskartellamt publishes on its homepage a list of the current merger control proceedings (stating the companies involved, the date of notification, the product areas concerned and, if already completed, the conclusion of the proceedings).
The Bundeskartellamt endeavours to conclude examination proceedings that do not amount to a prohibition as quickly as possible. If, on the basis of the data communicated or already available to the Office, the significant impediment to effective competition (for example, through the emergence or strengthening of a dominant position) is clearly out of the question, the Bundeskartellamt will inform the notifying companies as soon as possible after receipt of the complete notification that the prohibition conditions have not been met and thus release enforcement.
The majority of the more than 1,000 merger control proceedings per year can be terminated with a clearance in the first phase.
Federal Ministry for Economic Affairs and Energy
The text was automatically translated based on the German content.
