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
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.
To view Community Week Issue 448 - 20 November 2009 in full
click here .
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