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Results: 4 Answers
Merger Control
Trends and predictions
How would you describe the current merger control landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
In 2018 approximately 1,300 transactions were notified to the FCO, which initiated a Phase 2 review in approximately only 1% of these cases. One transaction was cleared subject to remedies and three notifications were withdrawn. In the first half of 2019 the FCO has prohibited two transactions and four notifications have been withdrawn.

The enforcement of competition law in the digital economy has been, and will remain, a clear priority of FCO enforcement. The last reform of the Act against Restraints on Competition (ARC) provided the FCO with additional powers in this area. In particular, the alternative thresholds seek to capture so-called ‘killer acquisitions’ – that is, acquisitions of innovative targets with no or only little turnover, with the aim of pre-empting future competition. However, so far, there have been no cases in this regard. In its analysis of mergers involving internet platforms, the FCO will consider factors such as:

  • (direct and indirect) network effects;
  • the relevance of multi-homing (ie, the use of several platforms in parallel); and
  • the relevance of access to data.

As regards substantive assessment, the FCO increasingly also assesses whether transactions may substantially lessen competition even in the absence of a dominance position.

According to the German government, a draft bill for the next reform of the ARC may be presented later this year. Currently, it is expected that the second domestic turnover threshold of €5 million will be increased to €10 million. Other changes are being discussed, such as empowering the FCO to review successive acquisitions in particular sectors that, on an individual basis, would remain below the thresholds.

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