Mergers between companies are examined by the Bundeskartellamt under certain conditions.
This is to avoid disadvantages for competition. The Bundeskartellamt always examines the merger if the companies exceed certain turnover thresholds or if a particularly high purchase price is paid for the project.
The Bundeskartellamt only prohibits the merger if it would significantly impede effective competition. This is particularly the case if it is to be expected that the merger will lead to the acquisition or strengthening of a dominant position.
Mergers of undertakings must be notified to the Bundeskartellamt and may not be implemented during the entire examination procedure ("implementation prohibition"). Otherwise the agreements are invalid, a fine may be imposed or the merger may be unbundled. The purpose of ex-ante control is to prevent mergers that are problematic from a competition point of view from having to be broken up afterwards. In order to give companies certainty as to when they are allowed to merge, the Act provides for tight deadlines for the review procedure.
Impending restrictions of competition can also be partly eliminated if the companies involved give undertakings. For example, if such undertakings are given, a company may be obliged to sell certain parts of its business or business areas to competitors.
The Bundeskartellamt has extensive powers of investigation to obtain a comprehensive picture of the conditions of competition. The authority can request all relevant documents and business data from companies and associations of companies. It also conducts comprehensive market surveys and interviews individual market participants.
Under certain conditions a notification to the Bundeskartellamt is not necessary. This is the case if
- the European Commission is primarily responsible as competition authority (which is determined on the basis of turnover thresholds)
- the merger does not have a domestic effect, i.e. if it does not have a noticeable and direct impact on competition in Germany (this is independent of a company having its seat in Germany) or
- the turnover thresholds are not reached or the purchase price is below EUR 400 million.