Recent Developments Regarding the Application of German Merger Control to International Transactions

On February 13, 2009, the merger control rules in the German Act Against Restraints of Competition (ARC) were amended by introducing a second domestic turnover threshold, aligning German merger control rules more closely with those of many other jurisdictions. In parallel to this legislative change, the FCO demonstrated its determination to enforce the notification and approval requirement by imposing substantial fines in two recent cases where mergers were consummated prior to obtaining the required clearance from the FCO.

Furthermore, the Düsseldorf Court of Appeals recently rendered a decision according to which the FCO is entitled to prohibit non-German mergers even if the focus of the merger is outside of Germany, provided that the German part of the merger cannot be prohibited separately from the remainder of the merger, and provided that there are no important interests of foreign states considerably outweighing the German interest in a prohibition of the transaction.