Nachträgliche Anmeldung von Unternehmenszusammenschlüssen nach GWB

Associate Philipp Werner (BR) wrote this article on German merger control. The article argues that the recent practice of the German competition authorities with respect to the treatment of post-closing notifications is fundamentally flawed because it creates legal uncertainty and does not respect justified interests of the merging parties and other market participants.

“In some instances the parties to a concentration, either wilfully or negligently, omit to notify the concentration prior to its closing, infringing both the filing and the standstill obligation. For various reasons, the parties may later envisage filing a notification ex post. It is unclear how such a filing should be treated under German law. According to a Memorandum dated 23 May 2008, the Federal Cartel Office will consider the ex post notification as a report of closing pursuant to Section 39 (6) ARC and will open a de-merger procedure pursuant to Section 41 (3) ARC. It will not apply the statutory deadlines applicable to ex ante notifications and it has announced that it will not in all cases issue a formal decision. This article argues that this new practice of the Federal Cartel Office entails a number of practical and legal problems. Therefore, contrary to the Memorandum of the Federal Cartel Office, an ex post merger notification should be qualified as notification according to Section 39 (1) ARC and the normal procedure and deadlines should apply. Only the application of the procedure foreseen under Article 40 § 1 and 2 GWB is compatible with the system and purpose of German merger control, taking into account the legal interests of the undertakings involved.”