{"text_format":"2","workbook":"xlsx","n_sheets":2,"sheets":["Coversheet","Lex Mundi Global Merger Notific"],"not_rendered":{"charts":0,"images":1,"macros":0,"external_links":0,"defined_names":0,"comments":0,"pivot_tables":0},"unopened":[],"bounds":{"document_bytes":16777216,"sheet_cells":100000,"run_cost":"one","rows_first":2000,"rows_last":500,"rows_between":2000,"halvings":0,"cell_chars":16384,"cell_head_chars":4096},"cells_cut":0,"cells_raw":0,"read":"whole","date_system":"1900"}

{"sheet":"Coversheet","index":0,"n_rows":12,"n_cols":3,"rows_kept":12,"cut":false,"hidden":false,"merged":[]}
[]
[]
[null,"Prepared By:","Contributors:"]
[null,"Noerr","Fabian Badtke"]
[null,null,"Peter Stauber"]
[null,null,"Till Steinvorth"]
[]
["Lex Mundi Global Merger Notification Guide"]
[]
["Report Generated: 4/27/2025"]
[]
["View your report results on next tab"]

{"sheet":"Lex Mundi Global Merger Notific","index":1,"n_rows":25,"n_cols":2,"rows_kept":25,"cut":false,"hidden":false,"merged":[]}
["Question","Germany"]
["Lex Mundi Merger Notification"]
["Is there a regulatory regime applicable to mergers and similar transactions?","Yes. The German merger control provisions are set out in Sec. 35 to 43a of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – “ARC”). The ARC was last amended in 2023 (“11th Amendment Act”), which entered into force on 7 November 2023 and concerns several changes to the German merger control regime. In particular, the 11th Amendment Act lowered the turnover thresholds for concentrations after a sector inquiry has found that future concentrations in the affected sector may significantly impede effective competition (see response to \"\nWhat are the relevant thresholds for notification?\").\n"]
["Identify the applicable national regulatory agency/agencies.","The Federal Cartel Office (Bundeskartellamt – “FCO”) has its seat in Bonn and is competent for, inter alia, enforcing German merger control provisions. The FCO has 13 independent decision divisions, which are competent to review cases and to prepare and issue decisions on behalf of the authority. While the decision divisions may involve other departments of the authority (e.g., the chief economist or the policy department), the final decisions are the exclusive responsibility of the decision divisions. Ten decision divisions are responsible for merger control enforcement, and their competencies are allocated by economic sectors (e.g., healthcare, financial services, media, telecommunications, etc.).\nIn addition to the FCO, each of the 16 German Federal states operates its own state competition authority (Landeskartellbehörde). However, the enforcement of merger control in Germany falls within the exclusive competence of the FCO.\n"]
["Is there a supranational regulatory agency (e.g., the European Commission) that has, or may have exclusive competence? If so, indicate.","The German merger control regime is not applicable to transactions that have a “Union dimension” and thus fall within the scope of the Council Regulation (EC) 139/2004 on the control of concentrations between undertakings (“EUMR”). If a transaction falls within the scope of the EUMR, the European Commission normally will have exclusive competence for this transaction (unless the case is referred to the FCO under the EUMR’s rules on referrals).\n"]
["Are there merger filing requirements? If so, where are they set out?","A merger notification is mandatory if the transaction qualifies as a “concentration” within the meaning of Sec. 37 ARC (see response to question 5) and if the merger control thresholds set out in Sec. 35 ARC are fulfilled (see response to question 8). Following a sector inquiry, the FCO may also order individual undertakings to notify all transactions in a specific sector provided certain turnover thresholds, which are below the general thresholds, are exceeded (see the response to \"\nWhat are the relevant thresholds for notification?\").\nA merger notification in Germany requires a minimum set of information as set out in Sec. 39(3) ARC (for more details see the response to \"\nWhat are the form and content of the initial filing?\"). Unlike in other jurisdictions or at the EU level, no mandatory filing form exists. Since 2021, it is no longer necessary to make a report to the FCO once a notified and cleared concentration has been implemented. However, notifiable concentrations which have been implemented without the required notification still must be reported as soon as possible after their implementation.  \n"]
["What kinds of transactions are \"caught\" by the national rules? (Identify any notable exceptions.)"," The following types of transactions qualify as a “concentration” under German law (Sec. 37(1) ARC): \n \n Acquisition of assets = Acquisition of all or a substantial part of the assets of another undertaking; \n Acquisition of control = Acquisition of direct or indirect control over another undertaking or parts thereof by one or several undertakings. The concept of control under German merger control corresponds to the concept applied in European merger control. Thus, control can be acquired by rights, contracts or any other means conferring the possibility to exercise decisive influence over another undertaking; \n Acquisition of shares = Acquisition of shares in another undertaking if the shares, either separately or in combination with other shares already held by the undertaking, reach or exceed the thresholds of (a) 25% or (b) 50% of the capital or the voting rights of another undertaking; \n Establishment of a joint venture = If several undertakings simultaneously or successively acquire shares in another undertaking at least 25% or 50%, respectively, this is deemed a concentration between the undertakings acquiring or holding the shares. In contrast to European merger control, German law does not require the joint venture to have “full functionality”, i.e., the target company in which each of two or more undertakings hold at least 25% of the shares or voting rights does not need to perform on a lasting basis all the functions of an autonomous economic entity; and \n Acquisition of competitively significant interest = Any other combination of undertakings enabling one or several undertakings to directly or indirectly exercise a “competitively significant” influence in another undertaking (for more details see response to question 6). \n \n German law provides for the following exemptions from merger control: \n \n If credit institutions, financial institutions or insurance companies temporarily acquire shares in another undertaking for the purpose of reselling them and if the voting rights are not exercised and the resale is completed within one year, the transaction does not require merger clearance regardless of the amount of shares acquired (Sec. 37(3) ARC). An extension of the one-year resale period can be granted by the FCO upon request. If the extension is not granted and, respectively, a resale does not materialize, the share acquisition needs to be notified to the FCO; \n German merger control does not apply in case that the concentration is a direct result of mergers or other changes in the composition of municipalities and concerns operators of public facilities or public service providers (Sec. 35(2), 1st sentence ARC); and \n Certain transactions involving exclusively association of savings banks or an association of cooperative banks are exempt from German merger control (Sec. 35(2) 3rd sentence ARC). \n "]
["Is notification required for minority investments?"," Minority investments are subject to German merger control in the following cases (always provided that the turnover thresholds are met by the participating undertakings, of course): \n \n The minority shareholding obtains the possibility to exercise (sole or joint) control over the target by means of veto rights concerning strategically relevant decisions (e.g. appointment and recall of managing directors or other members of governing bodies; adoption of the annual budget and financial plans, etc.); or \n Following the acquisition, the acquirer will hold at least 25% of the target’s capital or voting rights (with or without providing the acquirer with the possibility to exercise sole or joint control over the target). Shares held by affiliated companies as well as shares held by other companies for the account of the acquirer are considered held by the acquirer; \n Below the threshold of 25% of the target’s capital or voting rights, a minority investment will be subject to German merger control if the acquirer obtains “competitively significant influence” over the target. This influence is determined by assessing whether the acquirer will obtain a position comparable to a shareholder holding a 25% share. In practice, the FCO considers whether, in addition to the minority shareholding, there are “plus factors” that will result the acquirer having an influence in the target that exceeds the nominal level of his shareholding. Such “plus factors” may be, inter alia, special voting or veto rights granted to the minority shareholder; rights to nominate or appoint members to the target’s governing bodies (without necessarily obtaining a majority presence in these governing bodies); the acquirer having superior market and industry knowledge etc. There is no universally accepted minimum shareholding that is required for this type of concentration. Since the necessity of merger control thus mainly depends on the presence of “plus factors”, each minority investment below 25% should be carefully reviewed. \n "]
["Are foreign-to-foreign transactions captured by the merger control regime, and is there a local effects test?","Yes. German merger control applies to foreign-to-foreign transactions provided that such transactions have an appreciable effect on competition in Germany. If the turnover thresholds are fulfilled (see response to \"\nWhat are the relevant thresholds for notification?\"), the transaction is generally deemed to have such an appreciable domestic effect. However, in the case where foreign companies create a joint venture that does not meet the turnover thresholds, the applicability of German merger control depends on a domestic effects test. In September 2014, the FCO updated its \"Guidance on domestic effects on merger control\" providing concrete examples of how to apply the local effects test.\n"]
["What are the relevant thresholds for notification?"," German merger control applies if one of the following thresholds is fulfilled (while European merger control does not apply). \n In the last financial year preceding the transaction: \n \n The aggregate worldwide turnover of all undertakings concerned exceeded EUR 500 million; \n The German turnover of one undertaking concerned exceeded EUR 50 million; and \n The German turnover of another undertaking concerned exceeded EUR 17.5 million. \n \n If the above thresholds are not met, a concentration is subject to German merger control if in the last financial year preceding the transaction: \n \n The aggregate worldwide turnover of all undertakings concerned exceeded EUR 500 million; \n The German turnover of (only) one undertaking concerned exceeded EUR 50 million; \n Neither the target company nor any other undertaking concerned generated turnover in Germany in excess of EUR 17.5 million; \n The value of the consideration for the transaction is more than EUR 400 million; and \n The target company is active to a considerable extent in Germany. \n \n The term “value of consideration” means all assets and other benefits in kind that the seller receives from the purchaser in connection with the concentration (purchase price) plus the value of any liabilities assumed by the acquirer. \n Following an inquiry in a specific industry or service sector (pursuant to Sec. 32e ARC), the FCO may, if certain additional conditions are met, order undertakings to notify all of their concentrations in the sector that was the subject of the sector inquiry. The relevant thresholds have been significantly lowered in 2023. A concentration now must be notified if in the last financial year preceding the transaction: \n \n The undertaking, which has received an order from the FCO imposing the notification obligation, generated a turnover in Germany of more than EUR 50 million; and \n The target’s turnover in Germany exceeded EUR 1 million. \n \n Such a notification obligation will remain valid for a period of three years after the FCO’s decision has been served on the undertaking concerned and can be extended up to three times by three years each. \n For the purpose of turnover calculation, only the acquiring companies and the target company are relevant, while the seller’s turnover has to be taken into account only if the seller retains (1) the possibility to exercise control over the target (solely or jointly with the acquirer or third company); or (2) 25% or more of the target company’s shares. \n Turnover must be calculated for the whole group of companies to which the acquirer belong. Intra-group sales turnover and sales or similar taxes (VAT) are to be excluded. \n The following special rules on turnover calculation need to be taken into account: \n \n In case turnover is generated by trading goods, only 75% of the turnover is to be taken into account. \n Turnover generated by the publication, production or distribution of newspapers, magazines or their constituent parts must be multiplied by four (4). Turnover generated by the production, distribution or broadcasting of radio or television programs, or with the sale of TV or radio advertising time must be multiplied by the eight (8). \n In case of credit institutions, financial institutions, building and loan associations, and external capital management companies, instead of turnover the following income items are to be considered: interest income and similar income, income from securities (shares, other variable yield securities, participating interests, shares in affiliated undertakings), commissions receivable, net profit on financial operations, and other operating income. \n In case of insurance companies, instead of turnover the gross premiums are considered, both in primary insurance and reinsurance business. \n "]
["Is the filing voluntary or mandatory?","Notification is mandatory if the transaction qualifies as a concentration, the merger control thresholds are met, and the transaction has an appreciable effect in Germany.\n"]
["Provide the time in which a filing must be made.","German law does not stipulate a filing deadline. A merger notification may be filed at any time once the parties are committed to carry out the concentration. A memorandum of understanding or a letter of intent generally is sufficient to begin the filing process. A filing must be made before the concentration is implemented, and the concentration must not be closed until clearance has been obtained (“suspension obligation”).\nOnce a merger filing is received, the FCO publishes a short notice on its website. Such notice is usually published within several days after filing, and the concentration will thus become public at the latest at this time. For this reason, the parties should carefully consider whether a merger notification should be made before signing the purchase agreement.\n"]
["Is there an automatic waiting period? If so, please specify.","Yes, concentrations subject to German merger control must not be implemented prior to clearance by the FCO or the expiry of the applicable review deadlines. Following receipt of a complete merger notification, the FCO must decide within one month (“Phase I”) whether to clear the transaction by way of an informal clearance letter or to enter into an in-depth investigation (“Phase II”). A Phase II review generally must be completed by formal decision within five months after the filing of the complete notification; however this deadline may be extended, in particular, if the parties agree to an extension of the review period. There is no maximum period for such an extension, but in practice, the FCO normally will take a decision within 12 months after filing.\nUpon application, the FCO may grant an exemption from the suspension obligation. Such an exemption may only be granted if the parties can demonstrate that severe damage would otherwise occur to one of the participating undertakings or third parties, especially in cases of imminent insolvency of the target. In practice, such exemptions are extremely rare.\n"]
["What are the form and content of the initial filing?"," There is no mandatory notification form. However, a merger notification must be submitted in German language and in writing or electronically with a qualified electronic signature. \n A merger notification needs to contain the following information: \n \n Short description of the concentration including the size of the shareholding to be acquired and of the total shareholding to be held (in case of an acquisition of shares); \n Name, location (seat) and description of business activities of each undertaking concerned and their affiliated (group) companies, including information on type and scope of their business activities in Germany; \n Turnover of each undertaking concerned worldwide, in the European Union, and in Germany. If the notification requirement arises from the transaction value threshold, the value of consideration has to be indicated, too; \n Information on the market shares of the undertakings concerned, including the data used for calculating or estimating such shares, in all markets where the combined market share of the undertakings concerned exceeds 20% in Germany or a substantial part thereof; and \n Name of a person authorized to accept service in Germany for each undertaking concerned established outside Germany. \n "]
["Are filing fees required?","Yes, the participating undertakings must pay a fee (only) after the merger control procedure has been concluded. The fee may be up to EUR 50,000 generally and up to EUR 100,000 in particularly complex cases. It is within the discretion of the FCO to determine the level of the fee. It does so based on the work and time required for the review and the economic significance of the individual transaction. In simple cases that are cleared in Phase I, the fee normally does not exceed EUR 25,000.\n"]
["Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?"," German merger procedures consist of two phases: \n \n Following receipt of a complete merger notification, the FCO initiates Phase I review (preliminary investigation). During Phase I, the FCO may request further information from the parties and contact third parties to obtain all relevant information. Such (simple) requests do not “stop the clock”. The duration of Phase I is one month. While this period cannot be extended by the authority or the parties, it is possible for the parties to withdraw and refile to re-initiate a Phase I review. At the end of the Phase I review period, the FCO either grants a clearance or, in case the transaction raises competition concerns, opens Phase II. The decision to open Phase II must be served within the one-month Phase I period; otherwise the concentration is deemed cleared. \n The deadline for Phase II generally is five months as of the filing date unless the parties request an extension of the review period. Phase II review is automatically extended by one month if the parties offer commitments to address the FCO’s competition concerns. If the FCO issues a formal information request within Phase II and the parties fail to respond within the given deadline, the review period will be paused until the information is provided (stop the clock). If the FCO does not adopt a decision within the (extended) Phase II review period, the concentration will be deemed to have been cleared. To end Phase II, the FCO may issue a clearance decision, a prohibition or a clearance subject to conditions. Before issuing a prohibition, the FCO must provide the parties with a written statement of objections. The parties may then submit comments and counterarguments and propose commitments to address the competition concerns identified by the FCO. \n \n In the vast majority of cases (approximately up to 95%), merger clearance is granted within Phase I, often within the first two weeks (provided the case is not complex and the authority requires no additional information). An accelerated procedure is not foreseen in German merger control procedures. "]
["What is the substantive test for clearance?"," The FCO must prohibit a concentration if it significantly impedes effective competition (“SIEC test”), in particular by establishing or strengthening a dominant market position (Sec. 36(1) ARC). The combination of the SIEC test with the market dominance test exists since 2013. When applying the SIEC test, the FCO generally applies the standards as established by the European Commission and European courts, although there are differences in the details. As in EU merger control, the main purpose of the SIEC test is to allow the FCO to consider unilateral (non-coordinated) effects in concentrated markets. \n In German law, an undertaking is considered market-dominant if (i) it has no competitors, (ii) it is not subject to significant competition, or (iii) it has a superior market position in comparison to its competitors. German law prescribes a statutory (rebuttable) presumption that an undertaking is market-dominant if its market share is at least 40% (Sec. 18(4) ARC). The law also contains a presumption for collective market dominance which is assumed when three or fewer companies have a combined market share of at least 50%; or where five or fewer companies have a combined market share of at least two thirds (66.67%). \n In its assessment of whether or not an undertaking is market-dominant, the FCO takes into account various factors, including: \n \n market shares,  \n financial strength,  \n structure of the relevant market,  \n access to customers and suppliers,  \n access to competitively relevant data,  \n legal or factual barriers to entry,  \n structural links to competitors, suppliers,  \n switching costs, and  \n potential competition. \n \n German law further provides assessment criteria concerning market dominance in multi-sided and network markets: \n \n Direct and indirect network effects,  \n Multi-homing and switching costs for customers,  \n Economies of scale in combination with network effects,  \n Access to competitively relevant data, and  \n Competitive constraints due to innovation. \n \n In addition, in case of an undertaking acting as an intermediary in multi-sided markets, the assessment of its market position shall take account of the importance of the intermediary services provided by the undertaking for accessing customers and suppliers. \n Under the ARC, three exemptions exist where a merger cannot be prohibited even if the SIEC test is met: \n \n The undertakings concerned demonstrate that the transaction leads to improvements of market conditions that outweigh the restriction of competition resulting from the transaction (”balancing clause”). This balancing test is limited to competition-related aspects, i.e. aspects of general interest, customer benefits or job security may not be taken into account.  \n The SIEC test is met (only) in “de minimis” markets. A de minimis market is a market that has existed for at least five years and whose total volume is was less than EUR 20 million in Germany in the last calendar year. If the SIEC is met in several de minimis markets, the market volume of all such markets combined must be less than EUR million in Germany. \n The transaction is the acquisition by a (dominant) newspaper or magazine publisher of a small or medium-sized newspaper or magazine publisher if it can be demonstrated that the latter made significant losses during the last three business years and its existence would be at risk without the transaction.  \n "]
["What decisions can the agency make in relation to a notified merger (e.g. approval, approval with conditions or prohibition)?","At the end of Phase I, the FCO may either issue an informal clearance letter if the concentration does not raise any competition concerns or formally initiate Phase II for a thorough assessment of competition concerns identified during Phase I. The informal clearance letter does not give reasons and may not be appealed. At the end of Phase II, the FCO may either grant an unconditional clearance, a clearance subject to conditions or issue a prohibition decision. Phase II decisions are formal decisions that must contain reasons and that may be appealed.\n"]
["Can parties proactively offer commitments to the agency to remedy identified competition concerns?","The parties may propose commitments at any time during the merger review process although the FCO, unlike the European Commission, may only assess and accept remedies as part of a Phase II decision. Commitments are often offered by parties only once the FCO has issued its statement of objections. The proposal of commitments automatically extends the five-month Phase II period by one month. With regard to the nature of the commitments, the FCO generally is opposed to behavioral commitments since German law prohibits remedies which require a permanent monitoring by the FCO.\n"]
["Describe the sanctions for not filing or filing an incorrect/incomplete notification.","In general, German law distinguishes three kinds of sanctions: administrative fines, administrative law sanctions and civil law sanctions.\nRegarding fines, penalties may be imposed if incorrect or incomplete information is provided or if a notifiable merger is implemented without notification or before clearance (see response to question 19). The sanction for (intentionally or negligently) implementing the transaction without making the necessary merger notification may amount to a maximum 10% of the worldwide group turnover of the undertaking concerned. In case of an incorrect or incomplete notification, the FCO may impose a fine of up to 1% of the worldwide turnover of the undertaking concerned. In case incorrect or incomplete information is submitted to prevent the FCO from prohibiting the concentration, the undertakings concerned may be sanctioned by a fine of up to 10% of their worldwide turnover. Individuals (such as members of management) who are responsible for the failure to notify and, respectively, for submitting incomplete or incorrect information may be sanctioned with a fine of up to EUR 100,000 (in case of intentional violation) or up to EUR 50,000 (in case of negligent disregard). If the individual is responsible for providing incorrect or incomplete information to prevent the transaction from being prohibited, they may be fined up to EUR 1 million.\nRegarding administrative law sanctions, the FCO may order the unwinding of a completed transaction if it was not notified and cleared and if the conditions for a prohibition are met.\nRegarding civil law sanctions, legal transactions that are subject to German law and that implement a notifiable concentration without the required clearance are void and unenforceable. Certain exceptions exist regarding transactions entered into public registers. In addition, the nullity of a transaction can be remedied if the transaction is subsequently notified to, and cleared by, the FCO.\n"]
["Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger.","The implementation of a notifiable transaction before clearance has been obtained or despite a prohibition decision constitutes an administrative offense. See the response to \"\nDescribe the sanctions for not filing or filing an incorrect/incomplete notification.\" for more details.\n"]
["Can the agency review and/or challenge mergers that are not notifiable?","Transactions below the relevant thresholds are not subject to merger control. However, such transactions may be challenged by the FCO (and by third parties before the courts) if they constitute an abuse of a dominant position (Art. 102 TFEU, Sec. 19 ARC) or if they constitute an agreement between undertakings having the object or the effect of restricting competition (Art. 101 TFEU, Sec. 1 ARC).\n"]
["Describe the procedures if the agency wants to challenge an unnotified transaction.","Notifiable mergers which have not been notified are reviewed in “demerger” proceedings. Unlike a regular merger review, this procedure is not subject to any deadlines. Such procedure may be initiated by the authority or by the undertakings concerned. If the conditions for a prohibition (SIEC test) are met, the FCO will order the unwinding of the transaction. This may include a prohibition for the acquirer to exercise its voting rights in the target company and the appointment of a trustee charged with the sale of the shares in the target company. If the conditions for a prohibition are not met, the FCO will close the proceedings without a decision. It will inform the undertakings concerned of the closure of the proceedings, and this is considered sufficient to establish the effectiveness of the sale of shares under civil law.\n"]
["Describe, briefly, your assessment of the regulatory agency's current attitudes/activities, including enforcement trends and recent developments.","In 2024, the FCO reviewed approximately 900 transactions. Almost all transactions were cleared in Phase I, while a Phase II review was initiated in ten cases only. These in-depth reviews were concluded by clearance decisions in three cases,  four transactions were aborted during Phase II and two transactions are still under review (as of March 2025). Only one transaction was prohibited during this period. \n"]
["Other important/notable information:","German law provides that a prohibition decision by the FCO may be overruled by the Federal Minister for Economic Affairs and Energy upon request by the undertakings concerned (Sec. 42 ARC). The Minister may grant such a ministerial authorization if the anti-competitive effects of the merger are outweighed by macroeconomic advantages or by an overriding public interest. Unlike the FCO, the Minister may thus take aspects unrelated to competition into account. The ministerial authorization may be granted also subject to conditions and is subject to judicial review. The Minister normally must decide upon an application for ministerial authorization within six months, although this deadline may be extended upon request of the undertakings concerned. After the expiration of the initial six-month period, the application for obtaining a ministerial authorization is deemed to have been denied; it is unclear whether this is true also in case an extended deadline expires without a decision.\n"]