The Bundeskartellamt has lifted the ban on putting into effect the planned increase by Deutsche Post AG (DP AG) of its share in trans-o-flex Schnell-Lieferdienst GmbH, Weinheim (trans-o-flex) from 24.8 to 100 per cent, which was notified in July of this year, subject to strict obligations. The President of the Bundeskartellamt, Dr Böge, stated: “The obligations, which have the character of a hold-separate-order, will guarantee that trans-o-flex’s competitive independence is maintained until the proceedings are concluded and, in the event of a final decision prohibiting the merger, assure that the company can be transferred to a third party.”

The Bundeskartellamt has thus applied for the first time the provision created by the 6th amendment of the ARC, by which a merger may be put into effect before a final decision has been made, if important reasons for this are put forward (Section 41 (2) of the ARC). 

A crucial factor in the decision was that trans-o-flex is currently going through a difficult restructuring period. The insecurity resulting from the legal dispute on the admissibility of the merger, which is likely to go on for several years, would threaten to jeopardise these restructuring measures. Trans-o-flex’s competitiveness depends crucially on its partners actively supporting the restructuring policy, both in financial and organisational terms. In individual cases, however, this could have resulted in a conflict with the ban on putting a merger into effect. The exemption from the ban on putting the merger into effect now enables DP AG to fully exercise its responsibilities as a co-partner of trans-o-flex and to promote its economic efficiency and competitiveness.

On the other hand, the Bundeskartellamt had to make sure that the partial exemption from the ban on putting the merger into effect did not prejudice a final decision on the admissibility of the merger under cartel law. It had to be taken into account in this respect that the Bundeskartellamt tends to take a critical view of the merger. According to Dr Böge, the Bundeskartellamt has imposed far-reaching obligations to supply information on the parties involved. The purpose of this is to strictly monitor that the hold-separate-order is observed until a final decision on the merger’s admissibility under cartel law has been made. Violations of the obligations imposed constitute an administrative offence and can be punished by fines of up to DM 1 million.