German Court Reaffirms That Transaction Value-Based Test Is Only a Backstop

The Düsseldorf Court of Appeals (“DCA”) has now published its full reasoning rejecting the Federal Cartel Office’s (“FCO”) expansive interpretation of Germany’s transaction value-based test in Adobe’s acquisitions of Magento (e-commerce software) and Marketo (B2B marketing automation software).

The decisions clarify that the transaction value-based threshold is a subsidiary test, triggered only where the target’s limited domestic turnover does not reflect its actual market position or competitive potential. They also offer valuable guidance on how to apply the “significant domestic activities” requirement.

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