Mergers – Procedure

Submitting merger notifications

Mergers can be notified electronically to the Federal Competition Authority, BWB (Z008239) using the e-justice system.

In exceptional cases, notifications may be sent by post or submitted in person to the Chancellery or to the Secretariat of the Federal Competition Authority during normal office hours. In these cases, four identical copies of the merger notification must be provided. In addition, a notification fee of 6000 Euro is payable.

Request for review

The Federal Competition Authority will submit a request for review of the merger by the Antitrust Court (phase II) if:

• the Federal Competition Authority is of the opinion that the merger may pose problems under competition law and no agreement was reached prior to or during phase I regarding suitable measures to overcome these concerns; or
• the evaluation carried out by the Federal Competition Authority regarding the effects of the proposed merger on competition could not be completed by the four-week deadline (e.g. due to a lack of information relevant to the examination or the existence of complex competition matters).

Rights of third parties in merger proceedings

Any trader whose legal or business interests are affected by the merger may:

• submit a written statement within 14 days following publication of the notification sent to the Federal Competition Authority and the Federal Antitrust Prosecutor (although the intervening party has no right to their statement receiving any particular treatment);
• submit written statements during court review proceedings before the Antitrust Court (following a request for review by the Federal Competition Authority or the Federal Antitrust Prosecutor), although this does not result in the intervening party becoming a party to the proceedings.

If one of the parties representing the public interest receives a statement following publication of the application they must immediately inform the other, although it is strongly advised for practical reasons to submit any statements to both parties and to indicate this on the statement itself.

Pre-notification consultations/'phase I review'

It is in the interest of both the notifying party and the Federal Competition Authority for the latter's merger inspection procedures to be concluded as smoothly and swiftly as possible during the phase I review stage. Informal consultations based on a draft notification duly submitted in advance can be an effective means of acquiring additional information from notifying parties in a timely manner and avoiding the need for the Federal Competition Authority to submit a request for review triggering proceedings before the Antitrust Court, which is often the result of a lack of information with regard to the effects of the planned merger on competition.

In the interests of efficient merger control, the Federal Competition Authority grants companies the opportunity under certain conditions, even before the statutory deadline is triggered, to notify the Federal Competition Authority in advance of a planned merger within the meaning of Section 7 Kartellgesetz 2005 as part of a pre-notification procedure. Such pre-notification procedures precede the formal filing of a merger notification. In this context, the applicants for pre-notification can draw the Federal Competition Authority’s attention to possible questions relevant to competition law at an early stage, especially in complex cases, and ensure an efficient further procedure. The pre-notification procedure usually takes place in writing. It should be noted that there is no legal right to initiate the pre-notification procedure. Carrying out a pre-notification procedure is at the discretion of the Federal Competition Authority. The Federal Competition Authority has published a detailed guide "Pre-notification procedure in merger control".

If it is possible at this early stage to already identify the relevant competition issues and reach an agreement between the Federal Competition Authority and the notifying parties on effective remedies (e.g. as a result of the applicants committing to restrictions or conditions within the meaning of Section 17, para. 2 of the Kartellgesetz 2005), there is no need for review proceedings before the Antitrust Court, which can be both time-consuming and costly.

Such pre-notification consultations are advisable where an affected market as referred to in Section 5 of the merger form is concerned and there are factors involved that render the evaluation of the proposal more difficult, for example:

• lack of decisions or documentation on the size and delimitation of the relevant product and geographical market;
• lack of information and documentation on the market position of the companies involved; or
• existence of complex competition issues.

Pre-notification talks also serve to prepare market surveys by the Federal Competition Authority and to discuss any (private) reports or studies that may have been submitted.

Further links

• Mergers (→ Federal Competition Authority)
• Mergers form (→ Federal Competition Authority)^{German text}
• Guide to pre-notification procedures in merger control^{German text}

Legal basis

• Section 17 of the Kartellgesetz 2005 (KartG 2005)