This article is a follow-up to the article “Germany Proposes New Merger Control Threshold” published in the Antitrust Regulator (Winter 2009, Vol. II, No. 1).

As outlined in the previous article, the German Federal Government issued a draft of the Third Small Business Relief Act (Drittes Mittelstandsentlastungsgesetz) July 23, 2008, by which several statutory changes for the purpose of relieving German medium-sized companies from bureaucratic constraints shall be implemented.

The draft bill inter alia proposed modifications concerning the German merger control procedure: German law sets up two thresholds to determine whether a proposed transaction needs to be notified to the Bundeskartellamt (assuming the de minimis exception and the trifle market provision do not apply):

  • First, the combined aggregate worldwide turnover of all companies involved with the proposed transaction needs to exceed an amount of €500 million.
  • Second, the German turnover of at least one participating company needs to exceed €25 million.

Section 8 of the draft bill provided that one company participating in the merger needs to exceed a turnover threshold of €5 million in addition to the existing turnover threshold of €25 million, which needs to be exceeded by another participating company.

The draft bill was adopted by the German parliament (Bundestag) January 21, 2009 and was passed

by the Federal Council of Germany (Bundesrat) February 13, 2009 without any modifications with respect to the changes concerning the German merger control procedure.

The new regulation with regard to German merger control (Section 8 of the draft bill) will become effective on the day following the publication of the Third Small Business Relief Act.

The publication is expected to take place in the first half-year 2009.