Service Finder
Request examination of the intended merger of two companies
Service Description
Mergers between companies are reviewed by the Federal Cartel Office under certain conditions.
The aim is to avoid disadvantages for competition. The Bundeskartellamt always reviews the merger if the companies exceed certain turnover thresholds or if a particularly high purchase price is paid for the project.
The Federal Cartel Office only prohibits the merger if the merger would significantly impede effective competition. This is particularly the case if it is to be expected that the merger will lead to the acquisition or strengthening of a dominant market position.
Mergers of companies must be notified to the Federal Cartel Office and may not be implemented during the entire review procedure ("prohibition of implementation"). Otherwise, the agreements are invalid, a fine may be imposed or the merger may be unbundled. The prior review is intended to prevent competitively problematic mergers from having to be dissolved retrospectively. To give companies certainty as to when they are allowed to merge, the law sets tight deadlines for the review process.
Impending restrictions on competition can also be partially eliminated by the companies involved giving undertakings. For example, a company can be required to sell certain parts of the company or business areas to competitors if it gives such undertakings.
The Bundeskartellamt has far-reaching investigative powers in order to obtain a comprehensive picture of the competitive conditions. The authority can request all relevant documents and business data from companies and associations of companies. It also conducts comprehensive market surveys and talks to individual market participants.
Under certain circumstances, it is not necessary to notify the Bundeskartellamt. This is the case if
- the European Commission is primarily responsible as the competition authority (which is determined on the basis of turnover thresholds)
- the merger has no domestic effect, i.e. if it does not have a noticeable and direct impact on competition in Germany (this is independent of a company's registered office in Germany) or
- the turnover thresholds are not reached or the purchase price is less than EUR 400 million.
Process flow
Notify us of a planned merger of your company with an informal letter:
- Create a letter with the necessary information and print it out.
- Send the signed letter to the Bundeskartellamt; DE-Mail or e-mail with a qualified electronic signature is also possible (but simple e-mail is not sufficient).
- Once the Bundeskartellamt has received the complete notification, the examination procedure begins.
- The authority has time within the deadline to assess whether the project needs to be examined more closely or whether it can be cleared.
- If there are indications of competition problems that cannot be resolved within the preliminary examination procedure, a formal main examination procedure is initiated.
Requirements
The Bundeskartellamt carries out merger control if
- there is no overriding competence of the European Commission as competition authority,
- the undertakings concerned have combined worldwide sales of more than EUR 500 million and
- at least one of the companies involved has domestic sales of more than EUR 25 million and another has sales of at least EUR 5 million
- or the purchase price (value of the consideration) for the merger is more than EUR 400 million and the company to be acquired operates to a significant extent in Germany.
A notification of the companies involved in the merger is required.
Which documents are required?
- Simple letter with the following information:
- Form of the merger; in the case of acquisition of shares, also the amount of the shareholding acquired and the total shareholding (capital and voting rights)
- Company name, location of the branch / registered office
- Type of business operations (sector, economic level)
- Sales revenues (last financial year, worldwide, EU-wide and Germany-wide); if applicable, also information on the consideration (in the case of a purchase price of over EUR 400 million) and the type and scope of the domestic activities of the acquired company
- Market shares incl. calculation/estimation basis, if (largely) over 20% in Germany
- Group relationships, dependencies and shareholdings
- Naming of a person authorized to accept service in Germany if the registered office of the company is not in Germany
Note: The acquirer and the acquired party must provide information on all seven points mentioned. In the case of an acquisition of shares or assets, the transferor must also provide information on no. 2 and no. 7. If the companies involved (i.e. acquirer, acquiree and, in the case of an acquisition of shares or assets, also the transferor) are affiliated companies (i.e. they are controlled or dependent within the meaning of the German Stock Corporation Act), the information under no. 2 and 3 must be provided for all affiliated companies and the information under no. 4, 5 and 6 must be provided for the entire group of companies.
What are the fees?
Examination of the merger: Up to EUR 50,000 (depending on the economic significance of the case and the personnel and material costs for the authority); exceptionally up to EUR 100,000.
What deadlines do I have to pay attention to?
A notifiable concentration may not be implemented before
- the statutory review period of one month has expired without the Bundeskartellamt having initiated the main review procedure, or
- the four-month period of the main examination procedure has expired,
- or the Federal Cartel Office has cleared the merger.
Processing duration
- First audit information: maximum 1 month
- Audit period: maximum 4 months (extension possible with the consent of the company)
Legal basis
Appeal
Forms: none
Online procedure possible: no
Written form required: yes, DE-Mail or e-mail with qualified electronic signature also possible (but simple e-mail is not sufficient)
Personal appearance required: no
What else should I know?
The Bundeskartellamt publishes a list of current merger control proceedings on its website (stating the companies involved, the date of notification, the product areas affected and - if already completed - the conclusion of the proceedings).
The Bundeskartellamt endeavors to conclude examination proceedings that do not result in a prohibition as quickly as possible. If, on the basis of the data notified or already available to the Office, it is clear that there is no significant impediment to effective competition (e.g. through the creation or strengthening of a dominant market position), the Bundeskartellamt will inform the notifying companies as soon as possible after receipt of the complete notification that the conditions for prohibition have not been met and will therefore clear the case for enforcement.
The majority of the more than 1,000 merger control proceedings per year can be concluded with clearance in the first phase.
Further Information
Author
The text was automatically translated based on the German content.
- Merger of companies Audit
Remark: Display of performance in the source portal
Technically approved by
Federal Ministry for Economic Affairs and Energy
Professionally released on
15.08.2018
Source: Zuständigkeitsfinder Thüringen (Linie6PLus)
Competent Authority
Bundeskartellamt (BKartA), Fusionskontrolle
Address
53113 Bonn, Stadt
