Merger Control Filing at the Bundeskartellamt

Merger control filing at the Bundeskartellamt: the short answer

A merger control filing with the Bundeskartellamt (Federal Cartel Office, FCO) is required before closing where a transaction qualifies as a concentration under § 37 of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB) and the turnover thresholds of § 35(1) GWB, or the transaction value threshold of § 35(1a) GWB, are met, and the EU Merger Regulation does not apply. The FCO has one month from the complete notification to open a main examination (phase 2) and, if it does, five months from the complete notification to decide. Most cases are cleared in phase 1. Closing before clearance is prohibited and legal transactions breaching the prohibition are invalid.

This article explains when a merger control filing is needed, what it must contain, how the procedure and timetable work, how remedies are negotiated and when the ministerial authorisation (Ministererlaubnis) can overrule a prohibition. It reflects the GWB as published in November 2026.

When a merger control filing is required

Two questions must be answered: is the transaction a concentration, and are the thresholds met?

Concentrations under § 37 GWB

• acquisition of all or a substantial part of the assets of another undertaking;
• acquisition of direct or indirect sole or joint control;
• acquisition of shares reaching 25 or 50 per cent of the capital or voting rights;
• any other combination enabling one or more undertakings to exercise a competitively significant influence over another undertaking.

The last two categories go beyond EU merger control. Minority stakes of 25 per cent and even below, combined with board rights or information rights, can require a merger control filing in Germany although they would not be notifiable in Brussels.

Thresholds under § 35 GWB

Turnover is calculated at group level, with special rules for trading companies, credit institutions and insurers in § 38 GWB. Where the EU Merger Regulation applies, the Commission has exclusive jurisdiction unless the case is referred to the FCO.

What the notification must contain

Under § 39(3) GWB, a merger control filing must state the form of the concentration and, for each undertaking concerned:

• its name and registered office;
• the nature of its business;
• its turnover in Germany, the EU and worldwide (or the equivalent figures for banks and insurers) and, in transaction value cases, the value of the consideration and its calculation, as well as information on the target's activities in Germany;
• market shares and the basis for calculating or estimating them, where the parties together reach at least 20 per cent in Germany or a substantial part of it;
• in share acquisitions, the size of the stake acquired and the total stake held;
• an authorised recipient in Germany, if the undertaking is based abroad.

Information about affiliated companies is also required. Compared with EU Form CO, the German filing is short. In straightforward cases, a merger control filing can be prepared within days. In cases with overlaps, the FCO expects a fuller description of the markets, competitors, customers and the rationale of the transaction, and pre-notification discussions are useful.

Procedure and timetable

After receipt of the complete notification, the FCO publishes basic information about the case on its website and examines whether the concentration would significantly impede effective competition, in particular by creating or strengthening a dominant position (§ 36(1) GWB).

1. Phase 1. The FCO has one month from receipt of the complete notification to inform the parties that it is opening a main examination (§ 40(1) GWB). If it does not, the concentration may be implemented. Clearance letters are often issued earlier.
2. Phase 2. In the main examination, the FCO decides by formal decision whether to prohibit or clear. If the decision is not served within five months of the complete notification, the concentration is deemed cleared (§ 40(2) GWB).
3. Extensions. The period is extended by one month if the notifying parties offer remedies for the first time, and it can be extended with the parties' consent. It is suspended if the FCO must repeat an information request because a party failed to answer properly.

Third parties, such as competitors and customers, can be admitted to the proceedings and are often asked for their views through market tests. Before a prohibition, the authorities of the federal states in which the parties are based must be heard (§ 40(4) GWB).

Substantive exceptions

Even where competition would be significantly impeded, a concentration cannot be prohibited if the parties prove that it also improves competitive conditions and the improvements outweigh the impediment, or if the problems arise only on markets that have existed for at least five years and where less than EUR 20 million was generated in Germany in the last calendar year (§ 36(1) sentence 2 GWB), subject to exceptions.

Foreign-to-foreign deals and domestic effects

German merger control also captures transactions between non-German companies if the concentration has effects in Germany. The GWB applies to all restraints of competition that have an effect within its territory, even if caused outside it (§ 185(2) GWB). In practice, the FCO applies an appreciable domestic effects test in addition to the thresholds. Its guidance on domestic effects explains when foreign joint ventures or acquisitions of companies without meaningful German activities can be exempt. Where the target has no or only minimal activities in Germany, a merger control filing may not be required even if the turnover thresholds are formally met, but the analysis should be documented carefully because the consequences of a wrong assessment are invalidity and fines.

Post-completion notification and fees

Concentrations that should have been notified but were completed without notification must be reported to the FCO without undue delay (§ 39(6) GWB). This does not cure the invalidity of the implementing transactions under § 41 GWB, and the FCO may still open dissolution proceedings.

The FCO charges fees for merger control proceedings, calculated according to its effort and the economic significance of the transaction. The statutory maximum for merger control decisions is EUR 50,000, which can be doubled in exceptionally complex cases (§ 62(2) GWB).

Remedies

The FCO may clear a concentration subject to conditions and obligations to ensure that the parties honour commitments made to avoid a prohibition (§ 40(3) GWB). Remedies may not subject the parties to continuous behavioural control. In practice, the FCO strongly prefers structural remedies, such as divestitures of businesses to a suitable purchaser, often with an upfront-buyer requirement, over behavioural commitments. Clearance can be revoked if it was based on incorrect information, obtained by deceit or if the parties breach an obligation (§ 40(3a) GWB).

Remedies are usually negotiated in phase 2. Because the first offer of remedies extends the review period by one month, parties should time their proposals carefully and test them early with the case team.

Ministerial authorisation

If the FCO prohibits a concentration, the parties may apply to the Federal Minister for Economic Affairs and Energy for authorisation within one month of service of the prohibition, or of its becoming final if challenged (§ 42(3) GWB). The minister may authorise the concentration if, in the individual case, the restraint of competition is outweighed by macroeconomic advantages or justified by an overriding public interest, including the international competitiveness of the parties, provided the market economy is not endangered (§ 42(1) GWB).

The Monopolies Commission gives an opinion, and the minister should decide within four months (§ 42(4) GWB). Ministerial authorisations are rare and politically sensitive, and they can be subject to conditions. They can also be challenged in court by third parties, which adds further uncertainty to the timetable.

Standstill and gun-jumping

A notifiable concentration must not be implemented before clearance or expiry of the review periods, and legal transactions in breach of the prohibition are invalid (§ 41(1) GWB), subject to exceptions for land register and commercial register entries. The FCO can order the dissolution of a concentration that was completed without clearance. Gun-jumping can be fined up to 10 per cent of the total turnover of the undertaking in the preceding business year under § 81c(2) GWB. Integration planning, exchange of sensitive information and influence over the target's business before closing should therefore be limited to what is permitted.

Practical timetable planning

For a typical German transaction without significant overlaps, parties can plan on preparing the filing in one to two weeks and receiving clearance within the one-month phase 1, sometimes earlier. Where combined market shares are high, customers are likely to complain or the target is a recent start-up, it is prudent to plan for a main examination and a total of five to six months, and to build this into the long-stop date and the financing commitments. Parallel filings in other jurisdictions and FDI screening often determine the overall timetable more than the FCO review itself.

Illustration: a hypothetical German manufacturer with EUR 800 million worldwide turnover acquires 30 per cent of a competitor with EUR 25 million German turnover and the right to appoint one of three directors. The acquisition of 25 per cent is a concentration, the turnover thresholds are met and a merger control filing is required, even though the transaction would not give control under EU law.

How TRW & Co helps with a merger control filing

We advise buyers, sellers and targets on every step of a merger control filing at the Bundeskartellamt. We assess whether a transaction is notifiable under § 35 and § 37 GWB, coordinate multi-jurisdictional filings, prepare notifications, handle pre-notification contacts and information requests, and negotiate remedies in phase 2. We also advise on ministerial authorisation and on appeals. Our work connects with our merger control and M&A practices. See also our insights on the transaction value threshold and gun-jumping risks. To discuss a filing, contact us.