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Public Consultation regarding Guidance on Remedies in Merger Control

Date of issue: 07.10.2016

A public consultation on the draft “Guidance on Remedies in Merger Control” was opened today.

Commitments have proved their worth in practice as a major instrument for the effective implementation and enforcement of merger control rules. The Bundeskartellamt examines and assesses between 1,000 and 1,200 mergers annually, of which the vast majority do not raise any competition issues. However, in particular in the context of markets that are already to some degree concentrated, mergers can also have negative effects on market structure and the competitive behaviour of companies and in this way can adversely influence market results by increasing the market power of a single or several companies active on the relevant market.

A (notifiable) concentration has to be prohibited by the Bundeskartellamt if it would significantly impede effective competition. The guidance document explains the requirements that need to be met for the Bundeskartellamt to clear an otherwise problematic concentration subject to conditions and obligations (remedies). By including remedies in a clearance decision the Bundeskartellamt ensures that the parties to the merger fully meet the commitments they have offered during the merger proceeding in order to avoid a prohibition. This implies that the parties’ proposals are suitable to remedy the competition concerns.

The guidance document explains the requirements that merging parties‘ commitment proposals have to fulfil. On this basis, and with the help of commitments, the parties to a merger can modify their project post-notification in such a way that the merger no longer has to be prohibited. The document also sets out the procedure in which remedies are accepted and implemented.

Andreas Mundt, President of the Bundeskartellamt: “The new document provides the business community with detailed and practicable guidance on how the Bundeskartellamt assesses commitments proposed by merging parties in the context of merger control proceedings. I am confident that the increased transparency will be welcomed. The guidance document should assist companies in their efforts to prepare commitments that are acceptable. This can often save time and costs and enable them to realize the expected benefits of a merger to the greatest possible extent.“

The draft guidance document is available for download on the Bundeskartellamt’s homepage (Leitfaden Zusagen in der Fusionskontrolle), along with a courtesy translation into English (Guidance on Remedies in Merger Control).

Comments on the draft document are welcome and can be submitted before 18 November 2016. Responses by email can be transmitted to the following email address: Leitfaden-Zusagen-in-der-Fusionskontrolle@bundeskartellamt.bund.de. The comments received will be published. Respondents are therefore required to simultaneously submit a non-confidential version of their response that does not contain any business secrets.