Overview of merger control activity during the last 12 months

In 2017, Germany’s Federal Cartel Office (“FCO”) reviewed around 1,300 merger filings.A detailed review in Phase II proceedings has been initiated and/or concluded in 10 cases during 2017, and in a further three cases since January 2018. Out of the transactions reviewed in Phase II proceedings, three transactions were cleared unconditionally, and one transaction subject to conditions and obligations. One transaction was prohibited and a further five cases were withdrawn by the parties. At the time of writing this article, three Phase II proceedings are still ongoing.

In comparison to 2016, the number of cases under Phase II control remained the same; there had been 10 cases in Phase II proceedings in 2016 and in 2017. While there had been no prohibition in 2016, there was one prohibition in 2017. Even though only one transaction has been prohibited, a more realistic picture appears if the cases in which notifications have been withdrawn are accounted for as prohibited transactions. Withdrawing a notification is often preferred by the parties to receiving a prohibition decision, since the latter usually generates more (unwelcome) publicity and also would explicitly establish a precedent as regards market definition or other issues that have been contentious during the Phase II investigation. Furthermore, in case of withdrawal, only 50% of the filing fees have to be paid by the parties, thus providing an additional financial incentive. Since three out of 10 Phase II proceedings completed since January 2017 were cleared unconditionally, while in only one case commitments were deemed necessary for granting clearance, one may concludethat the initiation of Phase II proceedings does not equal “certain death” to the transaction, but that there is a chance of dispelling the FCO’s competition concerns.

The only prohibition issued by the FCO concerned the contemplated acquisition by online ticket shop and festival organiser CTS Eventim of the majority of shares of event organiser Four Artists (See more on this case below, under “Key industry sectors reviewed and approach adopted to market definition, barriers to entry, nature of international competition, etc.”)

Peter Stauber (Associated Partner, Berlin) and Rea Diamantatou (Associate, Brussels) contributed the Germany chapter of “Global Legal Insights: Merger Control 2018” (7^th edition). The chapter provides an overview of merger control activity in the last 12 months, new developments in jurisdictional assessment and discuss key industry sectors and policy developments in merger enforcement.

Read the Germany chapter online here or download the pdf version.