The Bundeskartellamt has published a draft of its guidance document “Domestic Effects in Merger Control“. This document is to replace the previous document which was published in 1999.

The draft document is available for download on the Bundeskartellamt’s website. A press release of the Bundeskartellamt is also available in English.

Comments on the draft can be submitted until 30 January 2014.

The guidance document is designed to help companies and their advisers assess whether a proposed concentration fulfils the requirements of the domestic effects clause. The domestic effects clause is one part of the procedural rules in merger control which determine if a proposed concentration is subject to notification in Germany.

The document provides important guidance for typical case scenarios. Firstly, it specifies one category of cases in which sufficient domestic effects can be clearly identified. Subsequently, it describes another category of cases in which it can be clearly ruled out that appreciable domestic effects are to be expected. Finally, the guidance document identifies criteria for the case-by-case assessment of other situations which are not covered by either of the two categories of cases mentioned above.

The guidance document clarifies that not all concentrations fulfilling the turnover thresholds are subject to notification in Germany. In contrast to the existing practice of the European Commission, under German law, appreciable domestic effects are a prerequisite for triggering the obligation to notify a concentration in Germany (section 130 (2) GWB). No notification is necessary if a foreign-to-foreign merger is not expected to have appreciable effects in Germany. As a consequence, the administrative burden for companies as well as for the Bundeskartellamt is decreased. At the same time, the guidance document increases legal certainty in advance of a corporate transaction for companies worldwide. The document provides business with a quick overview over the applicable case law and practice in Germany. Thus, it enables companies to determine more quickly and more easily whether a notification in Germany is required.

The Bundeskartellamt will publish the final version of the guidance document on its website after the consultation has been closed and the document has been further reviewed and finalized. It is envisaged that the comments received will also be published on the Bundeskartellamt’s website after the end of the consultation period.