In 2005, the FCO cleared the acquisition of asphalt mixer NMW by its rival Werhahn. The transaction raised concerns in several regional markets for mastic asphalt (used for the construction of roads and bridges) but the FCO found that these markets were de minimis. One of the parties’ competitors appealed the clearance decision. While the appeal was pending, the German Supreme Court changed its approach to de minimis markets: under the Court’s new approach the regional markets concerned by the Werhahn/NMW deal could no longer be considered as de minimis. In light of this new case law, Werhahn offered to divest part of its mastic asphalt business, and the FCO accepted the divestiture. It is highly unusual for a merger control authority to amend a clearance decision that is under appeal. It remains to be seen whether or not the Court of Appeals will accept the arrangement.
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