Concentration control

The merger control (including merger control ) is an instrument of the state (also of international) competition law , which is aimed at substantial disturbances of free and unfettered competition by excessive concentration of corporate power to prevent. There are regulations on merger control in a large number of countries around the world - including all major industrialized nations and all member states of the European Union with the exception of Luxembourg - and in some cases also on an international level, for example in European law.

The concentration control is of considerable practical importance. It is a necessary transit point for almost every major company acquisition . In addition, it is an important tool to protect and maintain the remaining competition, especially in markets that are already noticeably concentrated, such as food retailing, energy supply or the mineral oil trade.

Basics and importance of merger control

Concept and essence

The purpose of merger control is to prevent competition from being adversely affected by the merging of previously independent companies or parts of companies and the “excessive” concentration of entrepreneurial power that may be associated with this. Concentration processes are subject to a state control procedure ( merger or merger control ) before they are carried out , in which the effects of the concentration process on competition are determined and assessed and, if necessary, remedial measures can be ordered or the process is also prohibited entirely.

Number of reported merger projects at the Federal Cartel Office in 2004, by industry.

The growing together of companies (what the German law against restraints of competition - GWB - calls a merger , for which the term “concentration” and in certain cases “merger” is common) is part of everyday life in modern business life. The number of cases and their distribution across individual sectors in Germany show that such concentrations are not specific to just a few sectors - even if individual sectors may be more active than others in this respect (see adjacent figure).

Their manifestations are no less diverse. Most commonly encountered form of - if not the rule - is the company acquisition in which a company , for example, the majority of the shares and voting rights on or in another company takes over (also share deal called) or acquired by another company assets which operation or identify a part of the business (e.g. a single production site, one or more retail stores of a chain store or similar, also known as an asset deal ). The establishment of a joint venture ( JV ) by two or more previously independent companies belong here. In addition, concentrations of entrepreneurial power can also be brought about by a variety of more subtle, less transparent measures, for example by granting a company the right to control the majority of the members of the management bodies (management, board of directors, supervisory board, etc.) of another company and thereby indirectly determine the corporate policy of the latter.

In principle, competition law has a positive view of mergers. Mergers can have pro-competitive effects in a variety of ways, for example if they allow products or services to be offered more cheaply due to economies of scale , resources (production capacities, know-how, sources of supply, etc.) to be used more efficiently, or small corporate units that are no longer competitive in themselves to become an effective market participant again.

Rather, the merger control only takes corrective action if the concentration would result in an almost non-competitive situation - namely a dominant market position - or an existing situation of this kind would be cemented through further concentration. If that is the case, the merger control allows the competent competition authority to intervene by prohibiting the merger in whole or in part or making its implementation dependent on the fulfillment of pro-competitive requirements or conditions. Mergers can have adverse effects on competition in the following ways in particular:

If competitors join forces (so-called horizontal merger ), for example, the opportunities for the opposite side of the market (suppliers or buyers) to evade are reduced and, accordingly, the opportunities for the merged companies to assert themselves with their ideas on prices and conditions against both their suppliers and their customers increase. If, for example, two food retail chains merge, the consumer can no longer avoid the prices that one of these chains is asking for by buying from the other chain instead. Of the cases notified to the Bundeskartellamt, horizontal mergers make up by far the largest share (2008: 1,341 of 1,675 notified projects).

If companies come together that are upstream or downstream of each other within the same value chain, e.g. the manufacturer with the wholesaler or the wholesaler with the retailer of the same product in each case (so-called vertical merger ), this can give the competitors of these companies access to sources of supply or Make sales markets difficult. For example, in the past, energy companies generating electricity have acquired substantial stakes in municipal utilities and other electricity redistributors, which means that these redistributors often no longer came into question as electricity customers for competing electricity producers.

If companies that are active in different markets (different products and / or different geographical sales areas) merge (so-called conglomerate merger ), the financial strength gained by the merged companies can in particular have anti-competitive effects, namely deterring - and thus disciplining - competitors . Companies that are active in different product markets or sales areas have better opportunities to spread the risks of their business activities and to offset them internally.

Economical meaning

Number of merger projects registered or notified to the Federal Cartel Office against the ifo business climate index (annual average).

It is difficult to assess what effects the merger control will actually have in economic practice. The absolute number of cases - measured in terms of the merger projects registered or notified to the Bundeskartellamt in recent years (figure) - are, however, quite remarkable. Subject to some fluctuations, the Bundeskartellamt received around 1,500 registrations per year in recent years, with the number of cases showing a slight upward trend until 2007. The development of the number of cases also shows a certain correlation with the general economic development or the business climate.

The large number of cases does not mean, however, that the Bundeskartellamt actually exerted influence on the content of the notified projects on this scale. In 1,588 decisions taken by the Bundeskartellamt in 2008, the Office only made use of its statutory powers in 8 cases by imposing conditions or conditions (4 cases) or prohibiting the project (4 cases). In a further 56 registered cases in which the Federal Cartel Office ultimately did not make a decision because the notifying companies withdrew their registration, the influence of the Cartel Office cannot be ruled out, even if the withdrawal of a registration may have a number of other reasons (e.g. . Collapse of the financing of the project, change of strategy of the companies involved, etc.).

Foreign buyers according to number and share. Basis: indicated (not: registered) merger projects.

The development of the registered merger projects also documents the ever advancing internationalization of the economy. While the proportion of buyers with headquarters abroad in all of the merger projects notified to the Federal Cartel Office was around a quarter in 1991, it had risen to almost half by 2007 (Figure). Among the nations in which the foreign buyers are based, the USA was by far the top spot with around 25%, followed by neighboring European countries France, the Netherlands, Great Britain and Austria with around 10% each. Japan also follows in 8th place with less than 5%.

Basic elements and concepts of the law of concentration control

A large number of countries in the world - including all the major industrialized nations and all EU member states with the exception of Luxembourg - have their own right to control mergers. In addition, there are regulations at the intergovernmental level, for example in European law. Even if these legal systems differ considerably in detail, some basic elements and principles can nonetheless be identified that are common to a majority of the different systems of concentration control:

Thresholds

Almost all legal systems raise the question of whether a specific concentration process is subject to merger control, depending on whether it meets certain - mostly formal - minimum requirements, which are usually linked to the economic importance of the project or the companies involved (so-called thresholds). The thresholds serve to save the bureaucracy of merger control from the outset and only subject those projects to control where a certain anti-competitive potential can at least not be ruled out from the outset. It is common and common (especially in Western European legal systems, e.g. Germany, Austria, the Netherlands, France, Belgium, etc.) to link the thresholds to the annual turnover of the companies involved. The advantage of this connection is that the companies involved can determine relatively easily and reliably whether their project is subject to control or not. The disadvantage, however, is that sales-related thresholds usually only allow a very rough preselection and accordingly have relatively little "filter effect". Just as common, but less common, is a link exclusively or at least also to the market share of the companies involved (e.g. Great Britain, Spain, etc.). The better filter effect of this connection is bought at the price of the higher uncertainty in the determination of the market shares, which is based on the fact that U. very complex market considerations have to be made. But there are also other criteria to be found. For example, some jurisdictions (e.g. United States, Japan, Mexico, etc.) also use the business assets of the companies involved as a supplement or instead.

**General sales-related thresholds ⁽¹⁾ in Germany and some neighboring European countries in comparison** (EUR million)
Threshold	Germany	Switzerland	Netherlands	Italy	France	Belgium	Austria
Connection to worldwide sales:
joint turnover of all companies involved	500	1,323 ⁽³⁾	113		150		300
individual sales of at least two companies each							5
Linking domestic sales:
joint turnover of all companies involved		331 ⁽³⁾		461 ⁽³⁾		100	30th
individual sales of at least two companies each	25/5 ⁽²⁾	66	30th		50	40
individual turnover of the company to be acquired				46 ⁽³⁾

Notes on the table

As of October 2009. Without taking into account petty regulations and area exceptions (press, financial institutions, etc.)
Domestic sales of a participating company more than 25 million euros, domestic sales of another participating company more than 5 million euros.
Alternative conditions. It is sufficient if one of these thresholds is reached.

Preliminary control and prohibition of execution

Merger control is usually a preliminary control, i. H. Control that takes place before the merger is actually carried out. This is based on the practical consideration that in the event of a competitive unacceptable concentration, a follow-up control would have to reverse (disentangle) this afterwards, which is associated with considerable effort and is usually not completely successful. For example, technical know-how that one company has already disclosed to the other cannot simply be pushed back again.

In order for the preliminary control to take place effectively, it is usually safeguarded by a statutory enforcement ban. The prohibition on execution prohibits the companies involved from anticipating a concentration that has reached the threshold and is therefore subject to control, in whole or in part, as long as the competition authority has not approved the concentration. In other words, until the project has been approved by the competition authority, neither shares nor operating facilities may be transferred, management bodies of the acquired company may be staffed with representatives of the acquirer or other enforcement measures taken. Measures that are taken in violation of the prohibition on enforcement are usually ineffective . In this case, the competition authority can usually impose an additional fine .

Procedure and deadlines

The merger control is basically an application procedure . It is set in motion by a written application (the so-called merger notification ) of the companies involved to the competent competition authority. The competition authority ex officio investigates a concentration at best in exceptional cases, for example if there is a fear that a merger was carried out in violation of the prohibition on enforcement.

So that the preliminary control of company acquisitions and similar economic processes does not become a risk factor that cannot be calculated for those involved, especially in terms of time, the merger control is usually tied to relatively rigid statutory deadlines . The deadlines are usually set in motion with the receipt of a complete registration at the competition authority. If the competition authority wants to take action against the project, it must do so within the deadlines. The statutory deadline regulations usually provide for a two-part procedure. It consists of a preliminary examination procedure in which the competition authority can decide whether it wants to approve the project immediately or whether it wants to enter into a detailed examination (the main examination), and the main examination procedure (several months) in which the authority examines the project in detail and, if necessary, prohibits it can. If the authority does not make a decision within the deadline, the project is often considered approved.

Statutory deadlines for submitting a registration to the competition authority, on the other hand, are unusual and only occur in a few countries. In Brazil, for example, a registration must be submitted within 15 banking days after the first binding document has been created between the companies involved. Usually this is the signing of a letter of intent or a memorandum of understanding . But even without statutory deadlines, there is usually actual time pressure, especially for those involved in a company acquisition. It is not uncommon for the success of a company acquisition to depend on the transaction being concluded and carried out at a certain point in time - for example, because the financing of the project is only secured within a certain time frame. Because of the legal prohibition of execution, the companies involved will endeavor in practice to register the project with the competition authority in good time so that the project can be approved at the planned execution time.

Legal sources

Germany

In German law, the regulations on merger control can be found in the Act against Restraints of Competition (GWB), namely in its §§ 35 ff. In addition, the general provisions of the GWB also apply to merger control, in particular on the authority, administrative procedures and legal protection, to be found in §§ 48 ff. of the law.

The Federal Cartel Office has also explained the legal provisions on merger control in more detail by means of administrative principles in the form of information sheets. As a matter of fact, the administrative principles contain systematic descriptions of the administrative practice of the office, i.e. statements on how the office interprets the legal provisions on merger control and how it has applied them to various cases so far or will apply them in the future. Leaflets exist u. a. for the course of a merger control procedure (including explained forms for filing an application), for post-processing - d. H. in disregard of the prohibition on enforcement - registered mergers or the assessment of mergers with a foreign element. The leaflets are available for download in several languages from the Office's website.

The administrative principles of the Federal Cartel Office are not legally binding; In particular, the courts are not bound by administrative principles when they have to decide on a merger control case. They are therefore not sources of law in the strict sense of the word. Nonetheless, the Cartel Office may have to adhere to the administrative principles in individual cases (from the point of view of so-called self-commitment ) if there are no reasonable reasons for a treatment deviating from the principles in this individual case. In addition, the leaflets are an important working aid for practice because they enable those involved in a merger to adapt to the expectations and decision-making standards of the Cartel Office at an early stage.

European Union

At the European level, the equivalent to the German §§ 35 ff. GWB are the provisions of Regulation (EC) No. 139/2004 of the Council of January 20, 2004 on the control of company mergers (EC Merger Regulation) , a statutory ordinance on the basis in particular European competition law (Art. 101 ff. TFEU ). The regulation regulates the central material aspects of European merger control (including thresholds, merger circumstances, form and deadlines for decisions, investigative powers of the Commission and rules for the distribution of cases between the Commission and the competition authorities of the Member States). Details of the structure of the European merger control procedure (individual procedures, handling of deadlines, participation of third parties, in particular file inspection and hearing, etc.) are regulated by a separate statutory ordinance, namely Regulation (EC) No. 802/2004 of the Commission of 7 April 2004 on Implementation of Council Regulation (EC) No. 139/2004 on the control of business combinations (Implementing Regulation ) . The latter also contains the forms on which the registration of a merger is based (so-called Form CO for the normal case, as well as other forms for certain special cases). In contrast to German law, the forms in European law have the quality of legal norms.

The European Commission has also published administrative principles in the form of notices and guidelines to a much greater extent than the Federal Cartel Office . Of particular importance are the Commission's Consolidated Communication on Jurisdiction Issues , which explains the thresholds and circumstances of mergers under European law, as well as the various communications on the competitive assessment of mergers, namely the communications on the assessment of horizontal mergers, on the assessment of non-horizontal mergers and on Restraints of competition that are necessary for the implementation of a concentration. A complete, continuously updated list of all publications is available on the website of the European Commission's Directorate-General for Competition under the heading Mergers / Legislation. As far as the legal significance of these publications is concerned, basically nothing else applies to them than to the information sheets of the Federal Cartel Office (see above).

On March 23, 2013 the European Commission published proposals to simplify procedures in connection with the EU Merger Regulation. This is intended to reduce the bureaucratic effort and streamline the procedure to meet the needs of companies. For the scope of application of the simplified procedure in the context of EU merger control, the threshold for mergers between companies that compete with one another on the same market is to be raised from 15% of market shares to 20%. In the case of mergers between companies that are active in upstream or downstream markets (e.g. a manufacturer of motor vehicle parts and a motor vehicle manufacturer), an increase in this threshold from 25% to 30% is proposed. The Commission would also like to provide for the possibility of using the simplified procedure even if two companies operating in the same market have a combined market share of more than 20%, but the market share hardly increases as a result of the merger.

Austria

In Austria, merger control is primarily regulated in the Federal Act against Cartels and Other Restraints of Competition ( Kartellgesetz , KartG). Equivalent to the federal German §§ 35 ff. GWB are above all §§7 ff. KartG. In addition, the Austrian Federal Competition Authority has published administrative principles, namely a form for registering associations.

Switzerland

The legal basis in Switzerland is the Federal Act against Cartels and Other Restraints of Competition ( Cartel Act ). Article 9 ff. Of the law regulate the thresholds and material assessment criteria; The regulation on the control of business combinations ( Merger Regulation ) contains details of these provisions and of the merger control procedure .

Merger control in Germany

The merger control in Germany is based on §§ 35 ff. GWB . According to this, the merger control in Germany is basically arranged as follows:

Need for individual merger control

A merger of companies must be formally notified to the Federal Cartel Office if

the companies involved have achieved global sales of more than 500 million euros and more
at least one of the participating companies within Germany has generated sales of more than 25 million euros and another participating company has sales of at least 5 million euros.

This second domestic turnover threshold of 5 million euros was introduced by Article 8 of the Third SME Relief Act of March 17, 2009 and is intended to reduce the scope of German merger control law, particularly for medium-sized companies.

Mergers that involve a medium-sized company (in the sense of an independent company that does not generate more than 10 million euros in sales worldwide), as well as mergers that affect a minor market (i.e. a market, which has existed for at least five years, but on which no more than 15 million euros are turned over). On the other hand, the fact that one or more of the companies involved are based abroad does not automatically make German merger control superfluous.

As long as a merger has not been cleared by the Federal Cartel Office, the companies involved are not allowed to execute the merger. In other words, no company shares may be acquired, nor may company property, furniture, patents or other assets be transferred. If the companies nevertheless implement the merger, the agreements that make up the merger are ineffective. The Federal Cartel Office can also impose severe fines and order the separation of the merger.

Material examination standard and examination procedure

The Federal Cartel Office prohibits a merger if the merger creates or strengthens a dominant position in one of the markets to which the merger affects. Despite a dominant market position, a merger will not be prohibited exceptionally if the merger also leads to improvements in market structures (e.g. by keeping a competitor threatened by bankruptcy alive or opening up a new market) and these improvements are so significant that they are outweigh the disadvantages associated with the dominant position. The Federal Cartel Office has extensive investigative powers to determine the preconditions for a prohibition.

In the cases that are subject to mandatory control, the Federal Cartel Office generally has an examination period of 4 months after receipt of the complete registration; d. H. it can prohibit the merger within this period. To do this, however, it must inform the notifying company within one month of receipt of the registration (so-called "monthly letter") that it has started the examination of the merger (main examination procedure). The main review procedure should be initiated if a further review of the merger is required (Section 40 (1) sentence 2 GWB). In the main investigation procedure, the Federal Cartel Office decides by means of a formal order whether the merger should be prohibited or cleared. The release decision must also be justified; it can be combined with conditions and requirements (Section 40 (3) GWB). These must not be aimed at subjecting the companies involved to ongoing behavioral control. Decisions in the main examination procedure are announced (Section 43 (2) No. 1 GWB).

If the merger project is objectively unproblematic, it will usually be approved by the Federal Cartel Office within significantly less than four weeks.

Ministerial approval

According to Section 42 GWB, the Federal Minister of Economics is allowed to approve a merger that has been prohibited by the Federal Cartel Office. This approval should be granted if there is an overriding interest of the general public . This condition can be linked to conditions. A statement from the Monopolies Commission is required.

European concentration control

At EU level, merger control is regulated by the so-called Merger Control Regulation (EC) No. 139/2004 . Mergers are subject to merger control by the European Commission ( Commissioner for Competition ) (previously: Commission of the European Communities) if, in accordance with Art. 1 (2) Regulation (EC) No. 139/2004

the companies involved have a combined turnover of more than 5 billion euros worldwide,
at least two participating companies have achieved a Community-wide turnover of more than EUR 250 million and
the companies involved do not each achieve more than two thirds of their Community-wide turnover in one and the same Member State.

If these turnover thresholds are not reached, the European merger control will nevertheless take place in accordance with Art. 1 Para. 3 Regulation (EC) No. 139/2004 if

the global total turnover of the companies involved is more than 2.5 billion euros,
the total turnover of all companies involved in at least three member states exceeds EUR 100 million each,
in each of at least three of these member states the total turnover of at least two parties is more than 25 million euros,
the community-wide total turnover of at least two participants exceeds EUR 100 million each and
the companies involved do not each achieve more than two thirds of their Community-wide turnover in one and the same Member State.

As with German merger control, it also applies to EU control that the merger may not be implemented until the Commission has cleared it. Approval will not be granted under European law if the merger prevents effective competition in the common market, in particular by establishing and strengthening a dominant position.
In accordance with Article 2 of Regulation (EC) No. 139/2004, the Commission regularly applies the so-called SIEC test (Significant Impediment to Effective Competition). Here, the merger is examined with regard to market shares, financial strength, market entry barriers, demand and supply development and other criteria (Art. 2 Para. 1 lit. b) as well as effects on potential and actual competition (Art. 2 Para. 1 lit a).

In the further examination procedure, the commission determines the possibility and probability of non-coordinated (single market dominance) and coordinated (joint market dominance) effects depending on the type of merger (horizontal, vertical or conglomerate). Indicators can be: foreclosure, market entry barriers, weakening of competition and incentives, (price) transparency, deterrent mechanisms, insufficient competition between other competitors, limited customer changes, elimination of an important competitive force, and much more.
If coordinated or non-coordinated effects occur that lead to the assumption that effective competition is impaired, the companies can offer so-called remedies (for example: sale of a company division to competitors so that no market dominance is created in this segment ). In addition, pursuant to Article 8 of Regulation (EC) No. 139/2004, the Commission has the option of combining the decision with conditions and obligations (e.g. commitments).

If the Commission approves the merger, the procedure is ended and the merger may be implemented in accordance with Articles 7 and 8 of Regulation (EC) No. 139/2004 . However, if the Commission has "serious concerns" within the period of 25 days (Art. 10 (1) Regulation (EC) No. 139/2004 ) in its decision, a second phase will be initiated. However, this is rather unlikely with very high market shares.

For a merger that is subject to EU merger control, merger control by Member States no longer takes place (so-called one-stop shop ). However, according to Article 9 of Regulation (EC) No. 139/2004, the member states have the right to notify the Commission if a merger threatens to create or strengthen a dominant position ( "German clause" ). The Commission then decides whether the case should be followed up at national or EU level. If it decides to transfer the test to the national law of the member state, then the further course of the control procedure takes place exclusively according to the national regulations and not according to the EU regulations. If the member states have a legitimate interest (e.g. public safety, media diversity, supervisory rules, takeover of a French drinking water supplier by an English one) according to Art. 21 Para. 3, 4 Regulation (EC) No. 139/2004 , national competition law can also take priority.

The following scheme, which is also used by the European Commission in its decisions, is suitable for a review of a merger under the European merger control regulation:

Merger according to Art. 3 Regulation (EC) No. 139/2004
Community-wide meaning according to Art. 1 Para. 2 (, 3) Regulation (EC) No. 139/2004
Competitive assessment according to Art. 2 Regulation (EC) No. 139/2004
Result
further procedure

Merger control in other countries

In the USA , merger control is carried out by the Federal Trade Commission .

In Russia , the Federal Antimonopoly Service of the Russian Federation (FAS) is responsible.

In Switzerland it is carried out by the Competition Commission .

Web links

Competition authorities

Legal sources

Germany

Act against Restraints of Competition
Information sheets and forms from the Federal Cartel Office on merger control
Information sheet on German merger control (PDF; 46 kB; revised version from 2005, new version in progress)

European Union

Regulation (EC) No. 139/2004 (PDF), EC Merger Regulation
Regulation (EC) No. 802/2004 (PDF), implementing regulation
Legislation for European merger control , including notices and guidelines, overview of the Directorate-General for Competition at the European Commission, engl.
EU Competition Law: Rules Applicable to Merger Control (PDF; 4.5 MB; 356 pages, English)

Austria

Austrian cartel law

Switzerland

Individual evidence

↑ Activity report of the Federal Cartel Office 2003/2004, p. 220 f., BT-Drs. 15/5790. In the following activity reports, there is no longer a breakdown by industry.
↑ Activity report of the Federal Cartel Office 2007/2008, p. 181, BT-Drs. 16/13500.
↑ Mergers notified to the Federal Cartel Office - 1993 to 2016. (CSV) Federal Cartel Office , accessed on July 13, 2016 .
↑ Statistical information from the activity report of the Federal Cartel Office 2007/2008, p. 181, BT-Drs. 16/13500.
↑ Activity reports of the Federal Cartel Office 1991–2008
↑ Activity report of the Federal Cartel Office 2007/2008, p. 183, BT-Drs. 16/13500.
↑ europa.eu
↑ Federal Law against Cartels and Other Restraints of Competition, Federal Law Gazette I No. 61/2005.
^ Federal Act of 6 October 1995 on Cartels and Other Restraints of Competition, AS 1996 546.
^ Ordinance of June 17, 1996 on the control of business combinations, AS 1996 1658.

[1] Activity report of the Federal Cartel Office 2003/2004, p. 220 f., BT-Drs. 15/5790. In the following activity reports, there is no longer a breakdown by industry.

[2] Activity report of the Federal Cartel Office 2007/2008, p. 181, BT-Drs. 16/13500.

[3] Mergers notified to the Federal Cartel Office - 1993 to 2016. (CSV) Federal Cartel Office , accessed on July 13, 2016 .

[4] Statistical information from the activity report of the Federal Cartel Office 2007/2008, p. 181, BT-Drs. 16/13500.

[5] Activity reports of the Federal Cartel Office 1991–2008

[6] Activity report of the Federal Cartel Office 2007/2008, p. 183, BT-Drs. 16/13500.

[7] uropa.eu

[8] Federal Law against Cartels and Other Restraints of Competition, Federal Law Gazette I No. 61/2005.

[9] Federal Act of 6 October 1995 on Cartels and Other Restraints of Competition, AS 1996 546.

[10] Ordinance of June 17, 1996 on the control of business combinations, AS 1996 1658.