Comparative Guides
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Results: 4 Answers
Merger Control
3.
Notification
3.1
Is notification voluntary or mandatory? If mandatory, are there any exceptions where notification is not required?
 
Germany
Notification is mandatory for relevant transactions (see question 2.1), provided that the jurisdictional thresholds are triggered (see question 2.6). In such cases, the transaction must not be consummated before the Federal Cartel Office (FCO) has granted clearance. Exceptions apply if a transaction has no appreciable effects in Germany (see question 2.5) or is exempt from the German merger control regime (see question 2.7).

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners
3.2
Is there an opportunity or requirement to discuss a planned transaction with the authority, informally and in confidence, in advance of formal notification?
 
Germany
The FCO is generally open to discussing jurisdictional and substantive issues on an informal and confidential basis in advance of formal notification. However, there is no standard procedure for such discussions. Typically, such discussions are entered into only if they involve more complex questions.

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners
3.3
Who is responsible for filing the notification?
 
Germany
In principle, all involved parties are responsible for filing the notification. In practice, it is often the acquirer that files the notification in fulfilment of the notification obligations of all other undertakings concerned.

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners
3.4
Are there any filing fees, and if so, what are they?
 
Germany
There is a filing fee of up to €50,000, which may increase to €100,000 in exceptional cases. In practice, the filing fee usually ranges between €3,000 and €15,000. The actual amount depends on the FCO’s administrative efforts (in terms of personnel and material) and the economic significance of the transaction.

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners
3.5
What information must be provided in the notification? What supporting documents must be provided?
 
Germany
A notification must include only a very limited amount of information, including:

  • a description of the transaction;
  • a description of the parties and their turnover (worldwide, in the EU and in Germany);
  • their market shares, including the basis for their calculation or estimate, if the combined shares of all undertakings concerned amount to at least 20% within Germany; and
  • for foreign parties, the details of a person authorised to accept service in Germany.

If a filing is required because the alternative thresholds are triggered, information specific to these thresholds – for example, on the calculation of the transaction value – must be submitted. In practice, parties also (voluntarily) submit information about the relevant markets with a view to accelerating proceedings.

No supporting documentation must be provided. However, particularly in complex cases, the FCO sometimes requests documents such as the transaction agreement or internal presentations.

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners
3.6
Is there a deadline for filing the notification?
 
Germany
There is no deadline for filing. However, notifiable transactions must not be consummated prior to clearance.

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners
3.7
Can a transaction be notified prior to signing a definitive agreement?
 
Germany
Yes, it is possible to notify a transaction prior to signing a definitive agreement. The notifying party may be asked to substantiate that it has a good-faith intention to enter into a definitive agreement.

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners
3.8
Are the parties required to delay closing of the transaction until clearance is granted?
 
Germany
A notifiable transaction must not be consummated before clearance has been granted. Public takeovers may be consummated prior to clearance, provided that the transaction will be notified to the FCO without undue delay and the acquirer does not exercise the voting rights attached to the securities in question, or does so only to maintain the full value of those investments and on the basis of a derogation granted by the FCO. Parties may also request an exemption from the standstill obligation, although this is rarely granted by the FCO.

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners
3.9
Will the notification be publicly announced by the authority? If so, how will commercially sensitive information be protected?
 
Germany
The FCO will publish a short announcement that a notification has been submitted on its website. This announcement includes a file number, the names of the parties, the date of the notification and the economic activity concerned.

The notification itself will not be published by the FCO. Third (eg, intervening) parties may request access to the notification. If so, as the FCO is under a legal obligation to protect business secrets of the parties, it will not disclose information identified as business secrets by the undertakings concerned (which typically includes non-public information about turnover, market shares, transaction structures and so on).

For more information about this answer please contact: Daniel Wiedmann from P+P Pollath + Partners