The German Competition Authority ("BKartA") has published a note detailing the effect which the recent changes to the Act against Restraints of Competition ("GWB") will have with respect to the need for merger control filings in property transactions. The second limb of the turnover thresholds which relates to domestic turnover was changed in February 2009. In addition to the one of the Parties to the transaction having to show a domestic turnover of more than € 25 million, a condition was added stating that a further Party to the transaction has to show a turnover of more than € 5 million (see Community Week issue 411). Due to the vast majority of property transactions falling below this new second domestic turnover threshold, the BKartA has decided to remove two exemptions which had governed the notification obligations of property transactions prior to the changes to the GWB. The changes made by the BKartA are that:
- the notice issued by the First Division of the BKartA, dated 7 April 2006, exempting asset purchases in property transactions from the notification obligation, will become null and void as of 30 November 2009; and
- the possibility of bundling notifications in sale & lease-back transactions concerning multiple properties will become null and void on 31 December 2009. The last possible notification date for bundled sale & lease-back property transactions will be 31 January 2010 by way of retrospective bundled notification.
This means that the GWB exemptions for property transactions will no longer be valid and property transactions of all kind, including sale and lease-back transactions, will have to apply the three stage turnover test under Article 35 GWB to determine whether a notification is required. However, the implications for such property transactions are expected to be minimal. Following the introduction of the second domestic threshold as explained above, most property transactions will no longer fall within the notification obligation under the GWB in any event.
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