European Union: Important Amendments To The German Act Against Restraints Of Competition

Germany recently adopted the 9th Amendment to the Act against Restraints of Competition (the "Amendment"). The Amendment implements the EU damages directive, and brings about a number of additional, important changes to German competition law.

1.Merger Control: Introduction of a new, value based notification threshold

Under the former rules, a planned concentration has to be notified to the German Federal Cartel Office if certain turnover thresholds (the "turnover test") are met by the undertakings concerned.  A planned concentration has to be notified if, in the last business year preceding the planned transaction:

1. the combined aggregate worldwide turnover of all the undertakings concerned exceeded € 500 million; and

2. the turnover achieved in Germany by at least one undertaking concerned exceeded € 25 million; and

3. the turnover achieved in Germany by another undertaking concerned exceeded € 5 million.

In addition to this turnover test, which remains applicable, the Amendment has introduced an alternative notification threshold which triggers a pre-merger notification requirement in Germany. Pursuant to the new threshold, if the turnover criteria indicated in points 1 and 2 above are met, but the target company (or business) to be acquired does not meet the € 5 million domestic turnover threshold indicated in point 3 above, a planned concentration still has to be notified in Germany if:

  • the value of the transaction exceeds € 400 million, and
  • the target company (or business) is active in Germany "to a significant extent".

The rationale for this new test is to catch in particular acquisitions of start-up companies which do not (yet) achieve much turnover but which have a significant market presence, such as certain ies in the digital economy. For example, Facebook's 2014 acquisition of WhatsApp was a concentration where the target (WhatsApp) did not meet the turnover threshold of € 5 million in Germany and which therefore was not notifiable in Germany.  This transaction presumably would have required a notification in Germany under the new notification threshold considering to the high transaction value (USD 19 billion) and the fact that WhatsApp has many users in Germany and is therefore likely would have been considered as being active in Germany "to a significant extent".

However, the application of the new test criteria to individual cases is likely to raise questions in practice. According to the Amendment, the transaction value is the value of the consideration which the seller will obtain from the acquirer in connection with the concentration, including the purchase price and any other assets obtained as well as the value of any liabilities taken over by the acquirer. For some transactions, however, the total value of the consideration obtained may not always be easy to determine.

The question whether the target has a "significant activity" in Germany is also subject to interpretation. The German government's explanatory memorandum for the Amendment states that relevant activity in Germany will exist where, by way of example, the target company's services (including services provided free of charge) are used by users in Germany or where the target company carries out research and development activities in Germany.  Such activity will be considered significant, if, for example, the target has developed an "app" that is used by at least one million users in Germany. The explanatory memorandum further states that, where the user targeted by the "app" is more limited, the activity of the target in Germany may be considered significant even if the number of actual users is less than one million.

Considering the lack of legal certainty, it can be expected that in the future more companies will decide to submit precautionary notifications of their planned concentrations to the German Federal Cartel Office, in order to avoid the risk of exposure to fines for failure to notify a notifiable transaction.

2. Legal clarification of relevant criteria for the assessment of markets

The Amendment also adopts certain criteria regarding the definition of relevant markets and the assessment of the market position of undertakings, which are largely already applied in the practice of the German Federal Cartel Office.  It clarifies that a relevant market can also exist where the services on the market are provided free of charge. This is relevant primarily with regard to multilateral markets of the digital economy, such as internet platforms (e.g. hotel booking or real estate sales platforms, whose offers may be accessed free of charge).

As regards the assessment of the market position of undertakings, in particular of a dominant market position, the Amendment stipulates that, especially with regard to multilateral markets, criteria such as direct and indirect network effects, the parallel use of competing services (so-called "multi-homing"), economies of scale related to network effects, an undertaking's access to competitively relevant data and the competitive pressure to innovate can also be taken into account when assessing dominance.

3. Other important changes introduced by the Amendment

1. Extension of liability for competition law infringements to controlling parent company

Under the German competition rules, a legal entity is liable for competition law infringements committed by a natural person – an officer, managing director or other – who acted for the legal entity concerned. On the other hand, a fine could only be imposed on the controlling parent company of the legal entity liable for the infringement if it is established that the controlling parent company knew about the infringing acts of its subsidiary or should have known about these acts.  The Amendment eliminates this knowledge requirement.  It introduces the EU competition law concept whereby the controlling parent company and the entities it controls form a "single economic unit," and provides that the controlling parent company can be held liable and fined for competition law infringements committed by a controlled entity.

2. Liability of successor companies for competition law infringements

The Amendment also closes a legal loophole regarding successor liability for competition law infringements. Under the previous rules, a legal entity that had committed a competition law infringement was sometimes able to avoid a fine through restructuring, as the newly formed company could under certain conditions invoke that it was not the legal successor of the infringer. The Amendment stipulates that an undertaking that has taken over or continues the economic activity of the entity which committed the competition law infringement can be held liable for such an infringement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.