DuPont in Successful Appeal Against FCO Prohibition Order
January 19, 2007
Cleary Gottlieb represented E. I. du Pont des Nemours and Company (“DuPont”) before the Düsseldorf Court of Appeals in its successful appeal against the prohibition decision of the German Federal Cartel Office regarding the acquisition of the producer of industrial monofilaments Pedex & Co GmbH i.L. by DuPont. The Court of Appeals rescinded the FCO’s prohibition decision in a ruling issued on December 22.
The decision concerns the interpretation of the de minimis market clause (Bagatellmarktklausel), which exempts from German merger control rules transactions concerning markets with a volume of less than €15 million. Under a new interpretation of the clause, the FCO had in the DuPont/Pedex case assumed jurisdiction over the transaction by calculating the market volume for purposes of the clause on the basis of the actual geographic market for the products in question. That market extended beyond Germany and had a volume of more than €15 million. The Court overruled the FCO and held that only the German market volume is relevant for these purposes, even in cases where the actual geographic market extended beyond Germany. As that volume in the case at hand was below €15 million, the FCO lacked the power to prohibit the transaction.
The FCO has filed a further appeal against the decision before the German Federal Court (Bundesgerichtshof), which will be decided in several months.