Antitrust Law and Merger Control15.05.2020 Newsletter

COVID-19: German parliament decides on temporary extension of deadlines for German merger control and interest-free deferral of cartel fines

The corona crisis not only affects companies, but also has an impact on the operation of public authorities. In the opinion of the German legislator the German Federal Cartel Office (Bundeskartellamt) cannot conduct investigations or cannot do so within the usual timeframes, as companies are apparently not responding to the authority's inquiries or are responding with a considerable delay. The legislator sees the danger that mergers may have to be cleared due to a lack of sufficient background information, even though they would significantly impede competition (nota bene: according to all that is heard from the Bundeskartellamt, the legislator's view is not fully shared within the authority).

For this reason, the German parliament decided today to extend the deadlines for German merger control for a limited period of time (draft law, only available in German). The extension applies to all mergers notified between 1 March 2020 and 31 May 2020:

  • The review period for mergers for which no main examination proceedings are initiated (so-called Phase I proceedings) is now two months (instead of the previous one month).
  • If the main examination proceedings are initiated, the Bundeskartellamt now has 6 months from the submission of the complete notification to examine the merger (instead of the previous 4 months).
  • The deadlines also apply if the European Commission has referred a merger to the Bundeskartellamt.

The new time limits do not apply if on the day of the promulgation of the Act a fictional clearance under Section 40 (1) sentence 1 or Section 40 (2) sentence 2 GWB has already occurred or if the clearance has been expressly granted.

In addition, due to the current uncertain economic situation, companies should be given the opportunity to suspend the payment of imposed fines for a limited period without disadvantage. To this end, the Act provides that no interest will be paid on imposed cartel fines until 30 June 2021 if the undertaking concerned cannot reasonably be expected to pay the fine immediately. The unacceptability can also be determined retrospectively.

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Dr. Daniel Dohrn

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