On December 5, the German Federal Court of Justice (BGH) published a recent decision confirming the Düsseldorf Higher Regional Court’s Sulzer/Kelmix decision, pursuant to which fewer transactions will require notification in Germany. The Düsseldorf Higher Regional Court, the court that reviews Federal Cartel Office (FCO) decisions, had recently overturned the FCO’s narrow application of the de minimis market exception in two high-profile cases. (For more details, see our LawFlash issued January 30, 2007: http://www.morganlewis.com/pubs/ATR_GermanMerger_LF_30jan07.pdf.)
Pursuant to the de minimis market exception, a transaction that otherwise would have to be reported to the FCO does not require a premerger filing if the total sales in the relevant market do not exceed €15 million. In the past, the FCO took into account only the total sales achieved in Germany when applying this exception, even if the relevant geographic market was larger than Germany. Recently, the FCO had narrowed this exception, taking into account the total sales in the entire relevant geographic market; in defending this narrowed view, the FCO argued that a recent change in the German Competition Act required it to do so. This change has made it difficult for parties to take advantage of the exception. The Düsseldorf Higher Regional Court has twice overturned the FCO in this matter, holding that the exception applies when the German sales in the relevant market are less than €15 million. Nonetheless, the FCO continued its restrictive application of the exemption.
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