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What form should the notification take? What content is required?
There is no mandatory form for the notification of a merger to the FCO. In practice, merger notifications are generally made in the form of a letter to the FCO, which must contain the following information (Section 39 of the Act against Restraints of Competition):
- the form of the concentration;
- the name, place of business (or registered seat) and type of business of each affiliated undertaking concerned and the type of affiliation;
- turnover figures in Germany, the European Union and worldwide on a consolidated group basis;
- market shares, even for markets which are not affected by the transaction (and including the bases for their calculation), if the combined market share of the undertakings concerned amounts to 20% or more in Germany or a substantial part thereof;
- for acquisitions of shares, the amount of the shareholding acquired and the amount of the total shareholding held by the purchaser afterwards;
- for acquisitions which are only reportable due to the transaction value, information on the transaction value, the basis for its calculation and the type and scale of the business activities in Germany; and
- for parties based outside of Germany, the contact details of a person authorised to accept services in Germany.
The following information is not required by law, but is often included in a notification to facilitate the review process:
- the parties' market shares (even where the combined market share is less than 20%);
- separate data for the undertakings that are directly involved;
- descriptions of the markets affected by the merger and the merger's competitive effects; and
- other countries where the merger is intended to be notified or has been notified.
In cases where the parties expect the transaction to give rise to competitive concerns, it is common to provide detailed market information, often supported by economic studies.
Is there a pre-notification process before formal notification, and if so, what does this involve?
No standard pre-notification process exists and, in straightforward cases, the notification can be submitted without prior discussions or contact with the FCO. However, in more complex cases, it is advisable to have informal discussions and submit a draft notification to the FCO.
If a case officer is already familiar with the case and has seen a draft notification before the formal notification is submitted, this will generally (though not always) help to facilitate and speed up the process. In some cases, pre-notification discussions may even help to avoid Phase II proceedings. Hence, it is advisable to start the preparation of notifications early in the process and approach the FCO on an informal and confidential basis well ahead of the intended filing date.
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