Opposing tendencies regarding German merger control thresholds

In Germany, a concentration must be reported if the thresholds for European merger control are not met but the turnover thresholds under section 35(1) of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen) (“ARC”) are exceeded or the criteria for the transaction value threshold under section 35(1a) ARC are met. In this area of formal merger control, opposing tendencies have recently emerged: on the one hand, the Federal Court of Justice (Bundesgerichtshof) has significantly lowered the requirements for assuming substantial domestic operations, which means that more transactions are likely to be covered by the transaction value threshold. On the other hand, the federal government has announced that it will once again raise the turnover thresholds.

Federal Court of Justice on Meta/Kustomer: broad interpretation of “substantial domestic operations”

The transaction value threshold introduced in 2017 gives the Federal Cartel Office (Bundeskartellamt) the opportunity to examine concentrations even if the target company does not reach the second domestic turnover threshold. This becomes relevant, for example, in the case of so-called killer acquisitions or acqui-hires, which focus on innovation potential or key personnel rather than traditional company values, but which may also harbour the potential of jeopardising competition.

In the Meta/Kustomer case, the Federal Court of Justice dealt with the transaction value threshold for the first time and interpreted the criterion of “substantial domestic operations” extensively. The Court said that the mere technical possibility of accessing data of domestic end customers could trigger a notification requirement without the need for significant domestic turnover or a physical presence. It also stated that established criteria such as the ratio of domestic to foreign turnover of the target company would have to be given less weight than a market-based overall assessment. The Court’s decision leads to considerable legal uncertainty. Further clarification could now be provided by the Adobe/Magento and Adobe/Marketo cases, which are to be heard by the Federal Court of Justice shortly (see our Noerr Insights on the decision of Düsseldorf Higher Regional Court (Oberlandes­gericht Düsseldorf) on both cases).

Federal government to raise turnover thresholds

The federal government’s coalition agreement vaguely stated that the goal was to “ensure effective application of antitrust and competition law” and to “make procedures faster and more efficient”. As part of its modernisation agenda, the government then announced in October 2025 that it planned to raise the turnover thresholds by mid-2026, which had last been raised in 2021. The further details of this are not yet known, including whether the transaction value threshold for the value of consideration of currently €400 million will be adjusted at the same time. As a result, some competitively critical transactions would no longer be covered. To counteract this, adjusting the transaction value threshold would be one option. The alternative option of introducing a call-in right for the Federal Cartel Office is gaining increasing support.

Conclusion and outlook

Practitioners await the developments in German merger control in 2026 with interest. It is to be hoped that the transaction value threshold will be defined more closely by the courts or the legislature. Clear thresholds should continue to form a core element of German merger control in the future. Introducing a call-in right for the Federal Cartel Office could have a detrimental effect on transaction security and should therefore be seen critically.

This article is part of the Competition Outlook 2026. You can find all Competition Outlook articles here.