The official government draft contains hardly any relevant changes in content compared to the first draft bill from 2019 (on the first draft bill see our newsletter). The focus still lies on stricter abuse control for digital companies and platforms, an expansion of the German Federal Competition Authority (FCO) procedural powers and an increase in the thresholds for German merger control (for details see here). Also unchanged is the tightening of the liability of associations and their members for fines. This far-reaching change has so far received little public attention. This is surprising since it has the potential to cause lasting damage to the work of associations in Germany (see our position paper to the BDSV (only in German)).
Only the so-called "Remondis clause" has been slightly toned down compared to the first draft of 2019. The "Remondis-Clause" is intended to enable the FCO to intervene before a dominant position of large companies is created in certain markets. According to this the FCO can oblige companies to notify future transactions even if the usual turnover thresholds are not reached. One of the prerequisites is that the acquirer has achieved worldwide sales revenues of more than 500 million euros in the last financial year and that the target company has generated more than 2 million euros in sales revenues in the last financial year and more than 2/3 of its sales revenues in Germany. New to the government draft are two further requirements:
- The FCO must have previously conducted a sector inquiry in the affected branches of industry and
- the acquirer must have a share of at least 15 % of the supply or demand of the relevant goods or services in Germany in the relevant economic sectors. The government draft makes it clear that this is not a "market share" in the economic sense, but that what matters is the share of any goods and services that characterize the industry. Thus, for the purpose of determining the percentage threshold, the activities of a company in several different markets can be combined. As a result, the 15 % threshold could be exceeded more quickly than in a classic market share analysis.
The draft bill is passed on now to the German Parliament [Bundestag] and German Federal Council [Bundesrat].
Our antitrust law team will be happy to answer any questions you may have at any time.