A transaction with only a limited connection to Germany can still require clearance by the Bundeskartellamt before it closes. A foreign acquirer buying a business with modest German sales, an investor taking a minority stake with board and information rights, or two parent companies setting up a joint venture: each of these can trigger a German filing. Until the Bundeskartellamt has cleared the transaction or the review period has expired, it must not be implemented.
This follows from the design of German merger control (Fusionskontrolle) under the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB). A large acquirer meets most of the turnover thresholds through its own group, so a German turnover of more than EUR 17.5 million on the other side can be sufficient. The concept of a concentration reaches below control and below 25%. A transaction value threshold captures targets with high value but little turnover. And a strict standstill obligation applies, backed by invalidity of implementing acts and fines.
Where there are no competition concerns, the Bundeskartellamt normally clears a transaction within one month of receiving a complete filing. In most transactions, the work therefore lies less in the review itself than in identifying the filing obligation early and filing completely, so that the German review does not delay closing.
This article is written for deal teams and M&A counsel. It explains when a German filing is required, how the procedure works, what the standstill obligation means for the transaction and how the Bundeskartellamt assesses a concentration. It pays particular attention to digital and regulated markets, where data, network effects and access conditions shape the competitive assessment and where German law expressly treats access to competitively relevant data as a criterion of market dominance.
Table of Contents
Legal framework
The merger control rules are primarily contained in Chapter 7 of the GWB (§§ 35 to 43a GWB). The key provisions are:
- § 35 GWB: turnover thresholds and transaction value threshold;
- § 36 GWB: substantive test and exceptions;
- § 37 GWB: forms of concentration;
- § 38 GWB: calculation of turnover, market shares and transaction value;
- § 39 GWB: filing obligation, content of the filing and subsequent report of completed concentrations;
- § 40 GWB: procedure, review periods, conditions and obligations;
- § 41 GWB: standstill obligation and unwinding;
- § 42 GWB: ministerial authorisation;
- § 18 GWB: market dominance;
- § 32f(2) GWB: filing obligations imposed following a sector inquiry;
- § 185(2) GWB: domestic effects;
- § 186a GWB: special rules for certain hospital mergers.
This article reflects the GWB as last amended on 20 July 2026. Some of the Bundeskartellamt’s guidance documents remain useful but predate subsequent amendments and case law. Its information leaflet on German merger control dates from August 2022, its guidance on market dominance from March 2012 and its guidance on remedies from May 2017.
What counts as a concentration?
§ 37(1) GWB defines four forms of concentration. One is sufficient to trigger merger control.
| Form | Content | Note |
|---|---|---|
| Acquisition of assets (no. 1) | Acquisition of all or a substantial part of another undertaking’s assets | Can also cover businesses without significant turnover |
| Acquisition of control (no. 2) | Sole or joint control, i.e. the possibility of exercising decisive influence | Corresponds broadly to the control concept familiar from EU merger control |
| Acquisition of shares (no. 3) | Reaching 25% or 50% of the capital or voting rights | Does not require control |
| Competitively significant influence (no. 4) | Any other link that allows competitively significant influence (wettbewerblich erheblicher Einfluss) | A particular feature of German law, often relevant below 25% |
The fourth category is one that foreign counsel can easily overlook. It mainly captures minority stakes below 25% combined with so-called plus factors (Plusfaktoren), such as special information, consultation or control rights, which enable the acquirer to influence the target’s competitive conduct.
Actual exercise of influence is not required. The legal and economic relationship created by the transaction must give the acquirer the possibility of exerting competitively significant influence. The assessment therefore depends not only on the percentage of shares acquired but also on the governance structure and the commercial relationship between the parties.
A new transaction between companies that are already linked can also constitute a concentration unless it does not substantially strengthen the existing link (§ 37(2) GWB).
Acquisitions by banks, financial institutions or insurers for resale within one year are not treated as concentrations under the conditions set out in § 37(3) GWB, provided that the voting rights are not exercised to determine the competitive conduct of the undertaking concerned.
Acqui-hires and other non-traditional acquisitions
A concentration does not necessarily require the acquisition of shares or conventional business assets. German merger control can also capture less traditional transactions where, viewed as a whole, the acquirer obtains the competitive substance of another undertaking.
The Bundeskartellamt applied this approach in Microsoft/Inflection AI. Microsoft had hired almost all of Inflection’s employees and entered into accompanying arrangements, in particular on the use of Inflection’s key intellectual property rights. The Bundeskartellamt assessed the combination of these arrangements as a de facto takeover and therefore as a concentration under merger control. It nevertheless closed the German proceedings in November 2024: the transaction value exceeded EUR 400 million, but Inflection did not have significant activities in Germany, because the number of users of its chatbot in Germany was too low. German jurisdiction under the transaction value threshold was therefore not established.
The case is particularly relevant for acquisitions of technology and AI businesses. An acqui-hire, transfer of key personnel or bundle of contractual arrangements should therefore not be assumed to fall outside merger control merely because no shares are transferred. The relevant question is whether the transaction transfers the competitive substance of an undertaking or a substantial part of it.
Joint ventures
Joint ventures can trigger German merger control in several ways: as the acquisition of joint control, as an acquisition of shares of 25% or more, or as the acquisition of competitively significant influence.
Where two or more parent companies each hold at least 25% in a joint venture, § 37(1) no. 3 sentence 3 GWB also treats the parents as merging with each other in relation to the markets on which the joint venture is active.
German merger control is broader than the EUMR in this respect. Under the EUMR, the creation of a joint venture constitutes a concentration only where the joint venture performs on a lasting basis all the functions of an autonomous economic entity. German law does not make the existence of a concentration dependent on this full-function requirement.
A joint venture can therefore constitute a concentration under § 37 GWB because the parents acquire joint control, reach the relevant shareholding thresholds or obtain competitively significant influence, even where the joint venture would not qualify as a full-function joint venture under the EUMR. The conclusion that the creation of a joint venture falls outside the EUMR does not by itself answer whether a German filing is required.
Merger control clearance also does not settle the competition-law assessment of cooperation between the parents. Whether the joint venture leads to coordination of their competitive behaviour must be assessed separately under § 1 GWB and Art. 101 TFEU. This is particularly relevant where competitors establish joint infrastructure, purchasing, production or distribution arrangements, including joint fibre roll-out and network operation.
When must a concentration be filed?
A concentration must be filed with the Bundeskartellamt where, in the last financial year before the transaction, the thresholds in § 35(1) GWB are met.
| Threshold | Requirement |
|---|---|
| Worldwide turnover | All undertakings concerned together: more than EUR 500 million |
| First domestic threshold | At least one undertaking concerned: more than EUR 50 million in Germany |
| Second domestic threshold | Another undertaking concerned: more than EUR 17.5 million in Germany |
Whether the thresholds are met is independent of whether the parties’ activities overlap. A transaction without any horizontal, vertical or conglomerate relationship can therefore require a filing.
Transaction value threshold
Where the second domestic threshold is not met, the transaction value threshold in § 35(1a) GWB can nevertheless establish a filing obligation. It requires:
- worldwide turnover of all undertakings concerned of more than EUR 500 million;
- one undertaking concerned with more than EUR 50 million turnover in Germany;
- neither the target nor any other undertaking concerned with more than EUR 17.5 million turnover in Germany;
- consideration for the transaction of more than EUR 400 million; and
- significant activity of the target in Germany.
The consideration comprises the purchase price and the value of any liabilities assumed by the acquirer (§ 38(4a) GWB). The transaction value threshold targets acquisitions of undertakings whose competitive significance is not adequately reflected in current turnover. It is therefore particularly relevant for digital, technology and pharmaceutical businesses.
Whether the target has significant activities in Germany depends on indicators appropriate to its business model. For digital services, user numbers, monthly active users or unique visitors may be relevant. The registered office of the target is not decisive.
The joint guidance issued by the Bundeskartellamt and the Austrian Federal Competition Authority on the transaction value thresholds must now be read in light of subsequent case law. In its Meta/Kustomer decision of 17 June 2025 (KVR 77/22), the Federal Court of Justice addressed the German transaction value threshold for the first time. In a note of August 2025, the Bundeskartellamt stated that parts of the 2022 guidance no longer reflect the current legal position and that it follows the principles established by the Federal Court of Justice.
A further filing obligation can arise below the general thresholds where the Bundeskartellamt has imposed a special filing obligation following a sector inquiry under § 32f(2) GWB; see below.
Whose turnover counts?
The thresholds are calculated on the basis of the undertakings concerned (beteiligte Unternehmen), each together with its group (§ 36(2) GWB). Who qualifies as an undertaking concerned depends on the form of the concentration.
| Form of concentration | Undertakings concerned |
|---|---|
| Acquisition of assets | Acquirer and the transferred business or assets; the seller’s remaining activities are generally not attributed to the transaction |
| Acquisition of control | Undertakings acquiring sole or joint control and the controlled target; a seller giving up control entirely is generally not an undertaking concerned |
| Acquisition of shares | Undertakings reaching the relevant 25% or 50% threshold and the target; other shareholders can also be relevant under the statutory rules |
| Competitively significant influence | Undertaking obtaining the influence and the target |
Where parts of an undertaking are acquired, only the turnover attributable to the parts sold counts on the seller’s side (§ 38(5) sentence 1 GWB). This does not apply where the seller retains control or 25% or more of the shares (§ 38(5) sentence 2 GWB). By contrast, the turnover of all companies controlling or controlled by an acquirer forms part of that acquirer’s group turnover.
How is turnover calculated?
The turnover thresholds are not determined simply by taking the figures shown in the individual financial statements of the parties. The calculation follows §§ 36(2) and 38 GWB.
Turnover is determined under § 277(1) of the German Commercial Code (HGB); an undertaking that uses exclusively another internationally recognised accounting standard for its regular reporting applies that standard. Intra-group turnover and excise duties are excluded (§ 38(1) GWB). The turnover of the entire group to which an undertaking concerned belongs is attributed to that undertaking.
§ 38 GWB contains additional calculation rules for particular sectors and business models: only three quarters of turnover from trade in goods counts; turnover from publishing newspapers and magazines counts four times and from broadcasting eight times; for credit and financial institutions and insurers, specific income or premium figures replace turnover (§ 38(2) to (4) GWB).
The geographical allocation of turnover also matters. For the domestic thresholds, the relevant question is the turnover attributable to Germany rather than the place where the undertaking has its registered office. Cross-border and digital business models can therefore require a separate allocation analysis.
The transaction should also not always be examined in isolation. Under § 38(5) sentence 3 GWB, two or more acquisitions of parts of one or more undertakings between the same persons or undertakings within a period of two years are treated as a single concentration if this means that the thresholds of § 35(1) GWB are reached or the requirements of § 35(1a) GWB are met.
Foreign-to-foreign transactions and domestic effects
Meeting the thresholds of § 35 GWB is not necessarily the end of the jurisdictional analysis. Under § 185(2) GWB, German competition law applies to restraints of competition that have effects in Germany, even if they originate outside Germany. A concentration must therefore have sufficient domestic effects.
For ordinary acquisitions, the Bundeskartellamt considers that meeting the domestic turnover thresholds implies a corresponding domestic nexus. Domestic effects require separate examination in particular in constellations with more than two undertakings concerned, above all in the creation of joint ventures whose activities primarily take place outside Germany.
The analysis should distinguish three questions:
- Does the transaction constitute a concentration under § 37 GWB?
- Are the relevant jurisdictional thresholds met?
- Does the concentration have sufficient effects in Germany under § 185(2) GWB?
These are conceptually separate requirements. German turnover of the parent groups does not by itself establish that a foreign joint venture has effects on competition in Germany.
The Bundeskartellamt has published guidance on domestic effects in merger control (Merkblatt Inlandsauswirkungen in der Fusionskontrolle, 2014), which addresses foreign joint ventures in particular. That guidance predates the current numbering and several subsequent amendments of the GWB and should therefore be read together with the present statutory framework.
German or EU merger control?
Where the European Commission has exclusive jurisdiction under the EUMR, the German merger control rules do not apply (§ 35(3) GWB). The one-stop-shop principle means that a concentration with an EU dimension is reviewed by the European Commission rather than separately by the Bundeskartellamt and the national authorities of other Member States.
Below the EUMR thresholds, national merger control rules must be examined separately. German thresholds therefore form part of a multi-jurisdictional filing analysis rather than a substitute for it.
Referrals can shift jurisdiction in either direction. The referral mechanisms under Arts. 4, 9 and 22 EUMR therefore also form part of the jurisdictional analysis in transactions that potentially concern several Member States. Where the European Commission refers a case to the Bundeskartellamt, German procedural rules govern the national proceedings; a separate German filing is not required where the information required under § 39(3) GWB is available to the Bundeskartellamt in German (§ 39(4) GWB).
How is a filing made, and how long does the review take?
Who files, and what must the filing contain?
All undertakings concerned are subject to the filing obligation. In cases of asset acquisitions and share acquisitions (§ 37(1) nos. 1 and 3 GWB), the seller is also obliged to file (§ 39(2) GWB). The filing must be submitted in German.
Under § 39(3) GWB, it must contain:
- the form of the concentration;
- for each undertaking concerned, its name, registered seat and the nature of its business;
- group relationships and corresponding information for affiliated companies;
- turnover in Germany, the EU and worldwide;
- in transaction value cases, the value of the consideration, the basis for its calculation and information on the nature and extent of the target’s activity in Germany;
- market shares and the basis for their calculation or estimate, where the undertakings concerned together reach at least 20% in Germany or a substantial part of it;
- in share acquisitions, the interest acquired and the total interest held;
- a person authorised to accept service in Germany for parties without a seat in Germany.
Incorrect or incomplete information must not be provided or used to induce the Bundeskartellamt to refrain from a prohibition or from opening an in-depth review (§ 39(3) sentence 5 GWB). An incorrect or incomplete filing can be fined up to 1% of the undertaking’s total turnover in the preceding financial year (§ 81(2) no. 3, § 81c(3) GWB).
How to submit
Under § 39(1) GWB, filings can be made electronically via the special electronic authority mailbox (besonderes elektronisches Behördenpostfach, beBPo) against an acknowledgement of receipt, or via a designated internet platform. According to the Bundeskartellamt, the platform is currently not available, and the former option of filing by e‑mail was removed by an amendment in July 2026 (BGBl. 2026 I No. 199). In practice, filings are currently made via beBPo, for lawyers from the special electronic lawyers’ mailbox (beA), or by post or fax (Bundeskartellamt, Elektronische Kommunikation).
After receipt, the Bundeskartellamt publishes basic information on filed concentrations, including the case number, date of receipt, parties, form of concentration, affected product areas and relevant federal states.
In transactions that may raise substantive or procedural questions, the Bundeskartellamt can be approached before the formal filing. A draft filing can facilitate such pre-filing contacts.
Review periods
Phase 1 (Vorprüfverfahren). The Bundeskartellamt may only prohibit a filed concentration if it informs the parties within one month of receipt of the complete filing that it has opened an in-depth review (§ 40(1) GWB). Transactions without substantive concerns are normally cleared within that period.
Phase 2 (Hauptprüfverfahren). Following the opening of an in-depth review, the Bundeskartellamt decides by formal decision whether to clear or prohibit the concentration. If no decision is served within five months of receipt of the complete filing, the concentration is deemed cleared (§ 40(2) GWB).
The period is extended by one month when remedies are first offered and can also be extended with the parties’ consent. It is suspended where a party fails to answer a formal request for information in time. The opening and conclusion of Phase 2 proceedings are published.
The decisive practical point is that the statutory clock only starts once the filing is complete.
Fees
Merger control proceedings are subject to fees, which depend on the Bundeskartellamt’s administrative effort and the economic significance of the transaction. The fee is capped at EUR 50,000 and can be increased up to twice that amount where the effort is exceptionally high (§ 62(2) GWB). If a filing is withdrawn before Phase 2 is opened, half of the fee is due (§ 62(5) GWB).
What does the standstill obligation mean?
The parties must not implement a concentration that is subject to the filing obligation, or participate in its implementation, before clearance or expiry of the statutory review periods (§ 41(1) GWB).
Legal acts that breach the standstill obligation are invalid. Exceptions apply to land transactions and to corporate transformations and certain intercompany agreements once they have been entered in the land or commercial register, and to concentrations that were reported after completion where the subsequent unwinding procedure was discontinued (§ 41(1) sentence 3 GWB).
A breach can result in:
- invalidity of the implementing legal acts (§ 41(1) sentence 2 GWB);
- fines of up to 10% of the undertaking’s total turnover in the preceding financial year (§ 81(2) no. 1, § 81c(2) GWB);
- unwinding of a completed concentration that meets the prohibition criteria, unless ministerial authorisation is granted (§ 41(3) GWB); and
- an obligation to report the completed concentration to the Bundeskartellamt without undue delay (§ 39(6) GWB).
Public takeover bids and acquisitions of securities through a stock exchange can proceed where the concentration is filed with the Bundeskartellamt without undue delay and the acquirer does not exercise the voting rights, or does so only to maintain the full value of the investment on the basis of an exemption (§ 41(1a) GWB).
The Bundeskartellamt can also grant an exemption from the standstill obligation on application under § 41(2) GWB where there are important reasons, particularly to prevent serious harm to an undertaking concerned or to third parties.
What counts as implementation?
The standstill obligation concerns more than the formal transfer of shares or assets. The parties must remain competitively independent until clearance. Measures that transfer control, give the acquirer premature influence over the target’s competitive conduct or otherwise implement the substance of the concentration can therefore raise gun-jumping concerns.
Particular care is required with interim operating covenants. An acquirer has a legitimate interest in preserving the value of the target between signing and closing, but contractual rights must not enable it to determine the target’s ordinary competitive decisions before clearance.
Information exchange raises a related but distinct issue. Due diligence and transaction planning may require access to commercially sensitive information. Where the parties are competitors, access should be limited to what the transaction requires and, where appropriate, organised through clean teams or comparable safeguards.
An exchange of competitively sensitive information can raise issues under § 1 GWB and Art. 101 TFEU independently of whether it also contributes to premature implementation of the concentration. The distinction matters: the standstill obligation protects the effectiveness of merger control before clearance, whereas § 1 GWB and Art. 101 TFEU continue to govern the parties’ competitive relationship until closing.
What is the substantive test?
Under § 36(1) GWB, the Bundeskartellamt must prohibit a concentration that would significantly impede effective competition, in particular where it is expected to create or strengthen a dominant position.
The significant impediment to effective competition test (SIEC) is therefore not confined to dominance. A transaction can in principle significantly impede effective competition without creating or strengthening a dominant position. Dominance nevertheless remains the statutory paradigm and continues to play a central role in German merger control.
The counterfactual: competition with and without the transaction
The substantive assessment is prospective. The relevant question is not simply whether a market will be concentrated after the transaction. The Bundeskartellamt compares the competitive conditions expected following the concentration with those that would probably prevail without it.
This counterfactual becomes particularly important where the market is already changing independently of the transaction. A competitor may be entering or leaving the market, capacity may be expanding, technology may alter competitive constraints or regulation may change market access. The competitive deterioration attributable to the concentration must therefore be distinguished from developments that would occur in any event.
The same logic is relevant where the parties argue that the target is failing. The deterioration or disappearance of the target does not by itself establish that an otherwise anticompetitive acquisition should be cleared. The question is whether the deterioration of competition would also occur without the concentration and whether the target’s competitive assets or potential would in any event disappear from the market.
In regulated industries, the counterfactual can depend substantially on regulation. Existing or foreseeable access obligations, network regulation, open-access requirements or statutory data-access rights can determine which competitive constraints would exist without the transaction.
Market dominance under § 18 GWB
An undertaking is dominant on the relevant product and geographic market if it has no competitors, is not exposed to substantial competition or has a paramount market position in relation to its competitors (§ 18(1) GWB). The geographic market can extend beyond Germany (§ 18(2) GWB). § 18(2a) GWB clarifies that the assumption of a market does not fail merely because a service is provided free of charge.
The assessment does not depend on market shares alone. § 18(3) GWB identifies factors including:
- market shares;
- financial strength;
- access to competitively relevant data;
- access to supply or sales markets;
- links with other undertakings;
- legal or factual barriers to entry;
- actual and potential competition; and
- the ability of customers to switch suppliers.
For multi-sided markets and networks, § 18(3a) GWB adds factors including direct and indirect network effects, parallel use of several services and switching costs, economies of scale associated with network effects, access to competitively relevant data and innovation-driven competitive pressure. For intermediaries, § 18(3b) GWB additionally addresses the importance of their intermediation services for access to supply and sales markets.
Two statutory presumptions structure the assessment:
| Presumption | Threshold |
|---|---|
| Single dominance | Market share of at least 40% (§ 18(4) GWB) |
| Collective dominance | Three or fewer undertakings with a combined share of at least 50%, or five or fewer with a combined share of at least two thirds (§ 18(6) GWB), subject to rebuttal under § 18(7) GWB |
Theories of harm
The substantive analysis depends on the relationship between the parties and the competitive structure of the affected markets.
Horizontal concentrations combine actual or potential competitors. The analysis can concern unilateral effects, the elimination of particularly close competitive constraints or the creation or strengthening of collective dominance.
Vertical concentrations combine undertakings active at different levels of a supply chain. They can raise concerns where the merged entity obtains the ability and incentive to restrict competitors’ access to important inputs or customers.
Conglomerate concentrations combine undertakings active on neighbouring or complementary markets. Concerns can arise where a strong position on one market can be leveraged into another through tying, bundling, interoperability restrictions, ecosystem advantages or comparable strategies.
The Bundeskartellamt can also assess dominance on the demand side.
Nascent competition and innovation
Existing market shares do not necessarily capture the competitive significance of an undertaking whose products are still being developed or whose competitive position is expected to grow. This is particularly relevant in technology, pharmaceutical and other innovation-driven markets.
The substantive assessment can therefore examine whether the target represents an actual or potential source of future competitive pressure, whether the parties pursue overlapping innovation efforts and whether the concentration would reduce independent paths of innovation. In digital markets, § 18(3a) GWB expressly identifies innovation-driven competitive pressure as a factor in assessing market power.
This should be distinguished from the narrower concept of a killer acquisition. The acquisition of a nascent or potential competitor does not by itself establish that the acquirer intends to discontinue the target’s innovation or eliminate a future product. The broader competition concern is the possible loss of independent competitive or innovative potential.
Exceptions to prohibition
A concentration that meets the prohibition criteria can nevertheless be cleared where one of the statutory exceptions in § 36(1) sentence 2 GWB applies:
Balancing clause. The parties demonstrate that the concentration will also improve competitive conditions and that those improvements outweigh the impediment to competition.
De minimis market clause. The prohibition criteria are met only on markets on which goods or services have been offered for at least five years and on which less than EUR 20 million was generated in Germany in the last calendar year. The clause does not apply to markets within the meaning of § 18(2a) GWB (free services), to transaction value cases under § 35(1a) GWB, or to concentrations filed under a special filing obligation following a sector inquiry (§ 32f(2) sentence 3 GWB).
Press rescue clause. Special rules apply to certain acquisitions of small or medium-sized newspaper or magazine publishers in financial distress.
A transaction prohibited by the Bundeskartellamt can also be authorised by the Federal Minister for Economic Affairs and Energy under § 42 GWB where the statutory requirements for ministerial authorisation are met, in particular where macroeconomic benefits or an overriding public interest justify the concentration.
What remedies are possible?
Where a concentration would otherwise have to be prohibited, the Bundeskartellamt can clear it subject to conditions and obligations securing commitments offered by the parties (§ 40(3) GWB). Commitments can be proposed during the proceedings, but clearance subject to conditions or obligations occurs in Phase 2.
The Bundeskartellamt’s practice is guided by several principles:
Divestitures first. Because merger control addresses changes in market structure, the Bundeskartellamt generally prefers the divestiture of an existing viable business to a suitable and independent purchaser.
No continuing behavioural control. Under § 40(3) sentence 2 GWB, conditions and obligations must not subject the parties’ conduct to continuing control. Behavioural elements can therefore only serve as remedies where they produce a sufficiently structural and durable effect.
Conditions precedent. Divestitures can be structured so that the filed concentration cannot be completed before the required divestiture has occurred.
Trustees. Monitoring trustees and, where necessary, divestiture trustees or hold-separate arrangements can secure implementation.
The Bundeskartellamt publishes model texts for conditions, obligations and trustee arrangements. The first submission of commitments also extends the statutory Phase 2 period by one month.
Commitments and regulated markets
The limits on merger remedies are particularly relevant in regulated industries. Merger control addresses a structural change, and § 40(3) sentence 2 GWB excludes conditions and obligations that subject the parties’ conduct to continuing control. Sector regulation, by contrast, can impose and supervise continuing access obligations.
This distinction matters for remedies involving access to networks, interfaces or data. An access remedy requiring permanent behavioural supervision may be difficult to accommodate within German merger control even where comparable obligations are familiar from sector regulation.
Existing regulatory obligations can nevertheless form part of the competitive framework against which the concentration and appropriate remedies are assessed.
What is different in digital and regulated markets?
Digital and network industries can present competitive characteristics that conventional turnover and market-share analysis capture only incompletely. German law contains several instruments that are particularly relevant in this context.
Transaction value threshold
The transaction value threshold in § 35(1a) GWB can capture acquisitions of targets with low turnover but substantial economic value and significant activities in Germany. In digital markets, the assessment of domestic activity can use indicators such as user numbers rather than turnover alone. Since the Federal Court of Justice’s Meta/Kustomer decision, its interpretation must take account of the principles established in that case. Microsoft/Inflection AI shows the other side: a transaction can be a concentration and exceed EUR 400 million and still fall outside German jurisdiction for lack of significant domestic activity.
Filing obligations below the general thresholds
Meeting the general thresholds in § 35 GWB is not the only way in which a German filing obligation can arise.
Following a sector inquiry, the Bundeskartellamt can oblige individual undertakings by decision to file every concentration in the sectors examined where there are objectively verifiable indications that future concentrations could significantly impede effective competition in Germany (§ 32f(2) GWB).
The obligation only applies where the acquirer had more than EUR 50 million and the target more than EUR 1 million turnover in Germany in the last financial year. It applies for three years and can be extended by three years at a time, up to three times. The de minimis market clause does not apply to such filings.
This mechanism is particularly important because an undertaking subject to such an order cannot determine its German filing obligations by reference to § 35 GWB alone. Older guidance may refer to § 39a GWB. That provision has been repealed and the relevant mechanism is now contained in § 32f(2) GWB.
Special rules for hospital mergers
German law contains a temporary special regime for certain hospital mergers. Where at least two hospitals, or individual medical departments of at least two hospitals, are combined and German merger control applies, the parties must first apply to the competent state hospital-planning authority for confirmation that the concentration is considered necessary to improve hospital care (§ 186a(1) GWB). The authority publishes the application, consults the Bundeskartellamt and may not decide before one month after publication; if it does not decide within three months, the application is deemed rejected (§ 186a(2) GWB).
A filing with the Bundeskartellamt is only admissible and required where the confirmation is refused or deemed refused, or where it is granted but the transaction also affects markets beyond hospital services; in the latter case, the part covered by the confirmation is disregarded for the thresholds and does not form part of the filing (§ 186a(3) GWB). The one-month Phase 1 period does not start before the parties present the authority’s decision or show that the decision period has expired.
The provision applies only to concentrations completed by 31 December 2030 (§ 186a(5) GWB).
Gatekeepers under the Digital Markets Act
Undertakings designated as gatekeepers under the Digital Markets Act (Regulation (EU) 2022/1925, DMA) are subject to a separate information obligation for concentrations under Art. 14 DMA.
A gatekeeper must inform the European Commission of any intended concentration within the meaning of Art. 3 EUMR where the merging entities or the target provide core platform services or any other services in the digital sector or enable the collection of data. This applies irrespective of whether a filing is required under the EUMR or national merger control (Art. 14(1) DMA). The information must be given prior to implementation and following the conclusion of the agreement, the announcement of the public bid or the acquisition of a controlling interest. It must at least describe the undertakings concerned, their EU and worldwide turnover, their fields of activity, the transaction value or an estimate, the nature and rationale of the concentration and the Member States concerned, as well as turnover and user numbers of any relevant core platform services (Art. 14(2) DMA). If, following the concentration, additional core platform services meet the DMA thresholds, the gatekeeper must inform the Commission within two months of implementation (Art. 14(3) DMA).
Art. 14 DMA is an information obligation, not a merger control filing. It does not itself result in a clearance decision and does not create an independent standstill obligation.
The Commission passes the information on to the competent authorities of the Member States and publishes an annual list of the acquisitions it has been informed of (Art. 14(4) DMA). The Member States may use the information to request the Commission to examine the concentration under Art. 22 EUMR (Art. 14(5) DMA). Any use of the referral mechanisms must comply with the jurisdictional limits established by the Court of Justice, including its judgment in Illumina/Grail. For competitors and business users of a gatekeeper, this chain can be the route by which an acquisition below the thresholds comes under review at all.
Dominance in digital markets
The substantive assessment of digital markets applies the criteria in § 18(2a), (3), (3a) and (3b) GWB. Relevant factors include:
- zero-price services;
- direct and indirect network effects;
- multi-homing and switching costs;
- economies of scale associated with network effects;
- access to competitively relevant data;
- innovation-driven competitive pressure; and
- the importance of intermediation services for access to supply and sales markets.
Acquisitions of potential competitors and complementary services that reinforce an existing ecosystem can therefore raise competitive issues even where conventional market shares appear modest.
Data as a competitive factor
Access to competitively relevant data is expressly recognised as a criterion for market dominance under § 18(3) no. 3 GWB and, for multi-sided markets and networks, under § 18(3a) no. 4 GWB. Whether data constitute a significant competitive advantage depends on their characteristics and on the market context.
| Type of data | Potential competitive relevance |
|---|---|
| Personal data | Competitive significance depends on exclusivity, replicability, scale, timeliness and the means through which the data are generated. Data protection law can affect whether and how data may be combined or used. |
| Non-personal, machine-generated or manufacturer data | Can affect competition in downstream services, maintenance and aftermarkets where third parties depend on access to data controlled by a manufacturer or platform |
| Large or continuously generated data pools | Can reinforce network effects, learning effects or feedback loops and thereby strengthen barriers to entry or expansion |
Possible theories of harm in data-driven concentrations include:
- horizontal combination of competitively significant datasets or analytical capabilities;
- vertical integration of a platform or infrastructure provider with services dependent on its data;
- privileged access to data that restricts competitors’ ability to compete or expand;
- acquisition of a nascent or potential competitor whose independent competitive potential may otherwise develop;
- reduction of independent innovation competition; and
- reinforcement of network effects or ecosystem advantages.
Data protection law and competition law pursue different objectives, and the Bundeskartellamt does not enforce data protection law as such in merger control. Data protection rules can nevertheless form part of the legal and economic framework of the counterfactual. They can determine which data the parties may combine or share without the concentration and which uses remain legally available after it.
The author has addressed these questions in talks on data and merger control at the DAJV Transatlantic Legal Conference in Frankfurt am Main on 17 March 2023 and on the competitive significance and competition-law assessment of data at the conference Datenschutz in Transaktionen in Frankfurt am Main on 14 June 2023.
Telecommunications and other regulated sectors
In telecommunications and other regulated network industries, merger control operates alongside sector-specific regulation. Access obligations under the Telecommunications Act (TKG), open-access obligations resulting from broadband subsidy schemes and regulatory market analyses can form part of the competitive conditions against which a concentration is assessed.
They do not replace merger control. They can, however, affect:
- market definition;
- barriers to entry and expansion;
- the counterfactual;
- foreclosure analysis; and
- the feasibility and necessity of remedies.
The same analytical distinction applies to statutory data-access regimes. An existing access right may constrain market power, but its existence does not by itself answer whether a concentration significantly impedes effective competition.
What role do competitors and other third parties play?
Merger control is not solely a matter between the filing parties and the Bundeskartellamt. Competitors, customers, suppliers and other affected market participants can influence the authority’s assessment.
Information. Third parties can provide information and competition concerns to the Bundeskartellamt. In more complex proceedings, the authority sends formal requests for information to market participants (§ 59 GWB).
Market investigation. Third-party evidence can be particularly relevant to market definition, competitive alternatives, switching behaviour, barriers to entry, closeness of competition, access to inputs or customers and the likely effects of proposed remedies.
Admission to the proceedings. Persons whose interests are significantly affected by the decision can apply to be admitted to the proceedings (Beiladung, § 54(2) no. 3 GWB). Competitors, customers or suppliers may qualify where they have the required significant legal or economic interest. Admitted parties have the right to be heard (§ 56 GWB).
Appeal. An appeal (Beschwerde) against decisions of the Bundeskartellamt is open to the parties to the administrative proceedings, including admitted third parties (§ 73(2) GWB).
For competitors, the timing and substance of an intervention can matter. Evidence concerning market definition, competitive constraints, entry barriers, access conditions or foreclosure mechanisms is generally more informative than a general objection to the transaction.
What does this mean for the transaction documents?
Where a German filing is required, the transaction documents should reflect the standstill obligation and the possible duration of the review. Relevant provisions typically concern:
Closing condition. Clearance by the Bundeskartellamt, or expiry of the statutory review period without prohibition, as a condition precedent to closing.
Long-stop date. The agreed timetable should allow for the possibility of Phase 2 where the competition analysis cannot exclude it.
Cooperation covenants. The parties normally regulate responsibility for preparing the filing, providing group, turnover and market data, responding to information requests and coordinating contacts with the authority.
Remedies. Where substantive issues are foreseeable, the agreement may allocate responsibility for offering or accepting commitments.
Interim covenants. Restrictions imposed on the target between signing and closing must preserve the value of the transaction without transferring premature control to the purchaser.
Information exchange. Where the parties compete with one another, access to competitively sensitive information should be limited to what the transaction requires and structured appropriately, including through clean teams where necessary.
Because the review period starts only once the filing is complete, collection of the required group, turnover and market information should form part of transaction planning rather than begin only shortly before the intended closing date.
Ancillary restraints
Transaction agreements regularly contain restrictions extending beyond the transfer itself, including non-compete clauses, non-solicitation clauses and supply or purchase obligations between seller and target. German merger clearance does not automatically immunise such restrictions from § 1 GWB or Art. 101 TFEU.
Restrictions that are directly related and necessary to the implementation of the concentration can fall outside the prohibition of anticompetitive agreements. Their duration, geographic scope, subject matter and the persons bound by them remain relevant. Ancillary restraints should therefore be assessed together with the transaction rather than assumed to be covered by merger clearance.
How does merger control relate to other regimes?
A transaction can be subject to several regulatory regimes simultaneously.
| Regime | Authority | Principal question | Standstill |
|---|---|---|---|
| German merger control | Bundeskartellamt | Would the concentration significantly impede effective competition? | Yes |
| EU merger control | European Commission | SIEC assessment for concentrations within EU jurisdiction | Yes |
| German FDI screening | Federal Ministry for Economic Affairs and Energy | Does the acquisition raise public-order or security concerns? | For acquisitions subject to mandatory notification |
| EU Foreign Subsidies Regulation | European Commission | Could foreign financial contributions distort the internal market in connection with the concentration? | Yes for notifiable concentrations |
| Art. 14 DMA | European Commission | Information on concentrations involving designated gatekeepers | No |
These regimes have different jurisdictional thresholds, substantive tests and procedures. Compliance with one does not replace compliance with another. A transaction can be unproblematic under merger control while still requiring FDI or Foreign Subsidies Regulation analysis, and vice versa.
For transactions requiring both a German merger control filing and a German FDI notification, consistency in the description of the transaction, ownership structure, business activities and timetable is particularly important.
Checklist for deal teams
- Does the transaction fall within the EUMR, excluding German jurisdiction under § 35(3) GWB?
- Which concentration under § 37 GWB occurs, including a possible acquisition of competitively significant influence below 25%?
- Does the transaction involve a non-traditional acquisition, such as an acqui-hire or a combination of personnel, IP and contractual rights that may transfer the competitive substance of a business?
- For a joint venture, can German merger control apply even though the venture is not a full-function joint venture under the EUMR?
- Who are the undertakings concerned and which group companies must be included?
- Are the ordinary turnover thresholds of § 35(1) GWB met?
- If not, does the transaction value threshold in § 35(1a) GWB apply?
- Do previous acquisitions between the same parties have to be aggregated under § 38(5) sentence 3 GWB?
- For a foreign-to-foreign transaction or joint venture, does the concentration have sufficient domestic effects under § 185(2) GWB?
- Is an undertaking subject to a special filing obligation following a sector inquiry under § 32f(2) GWB?
- Do special sectoral rules, including § 186a GWB for qualifying hospital mergers, apply?
- Is a party a designated gatekeeper subject to Art. 14 DMA?
- Are there horizontal overlaps, vertical relationships or conglomerate links?
- What is the relevant counterfactual, and are entry, exit, technological change or regulatory developments expected independently of the transaction?
- Does the target represent nascent, potential or innovation competition that is not adequately reflected in current market shares?
- Could data, network effects, access conditions or intermediation strengthen the merged entity’s position?
- Does the transaction agreement contain an appropriate merger control condition, long-stop date and cooperation mechanism?
- Could interim covenants or pre-closing information exchange amount to premature implementation or create separate issues under § 1 GWB or Art. 101 TFEU?
- Are non-compete, non-solicitation, supply or other ancillary arrangements limited to what competition law permits?
- Is the German-language filing complete, including all required turnover, group and market information?
- Is the merger control workstream coordinated with FDI screening, the Foreign Subsidies Regulation, Art. 14 DMA and filings in other jurisdictions?
FAQ
Does a transaction without any competitive overlap require a German filing?
Yes, where the jurisdictional requirements are met. The filing obligation depends on the statutory concentration and threshold requirements, not on the existence of competitive overlaps. Overlaps primarily affect the substantive assessment.
Can a minority stake below 25% trigger a filing?
Yes. § 37(1) no. 4 GWB captures links that confer competitively significant influence even below 25%. Relevant plus factors can include governance, information, consultation or other rights.
Can an acqui-hire trigger German merger control?
Potentially. German merger control is not limited to conventional share deals. In Microsoft/Inflection AI, the Bundeskartellamt treated the hiring of almost the entire workforce together with arrangements on the use of key IP rights as a concentration, although it ultimately lacked jurisdiction for want of significant German activity.
Does a joint venture have to be full-function?
No. The German concentration tests under § 37 GWB can apply even where a joint venture does not satisfy the full-function requirement applicable to the creation of a joint venture under the EUMR.
How long does German merger review take?
Phase 1 lasts up to one month from receipt of a complete filing. If the Bundeskartellamt opens Phase 2, the overall period is five months from receipt of the complete filing, subject to statutory extensions and suspension.
When does the review period start?
Only once the filing is complete. An incomplete filing does not start the review period.
Can a filing be made in English?
No. The German filing must be submitted in German.
Can the parties close before clearance?
As a rule, no. A concentration subject to the filing obligation must not be implemented before clearance or expiry of the applicable review period. The GWB contains specific exceptions for public bids and stock exchange acquisitions, and the Bundeskartellamt can grant an exemption from the standstill obligation under § 41(2) GWB.
Can a filing be required even though the ordinary thresholds are not met?
Yes. In addition to the transaction value threshold, a special filing obligation can arise where the Bundeskartellamt has imposed one following a sector inquiry under § 32f(2) GWB.
Will the Bundeskartellamt confirm that no filing is required?
According to its information leaflet, the Bundeskartellamt cannot confirm outside formal proceedings that a project is not subject to a filing obligation. It is for the parties to assess whether a filing is required; in cases of doubt, the Bundeskartellamt recommends filing to obtain legal certainty.
Is Art. 14 DMA a merger filing?
No. Art. 14 DMA creates an information obligation for designated gatekeepers. It does not itself result in merger clearance and does not impose an independent standstill obligation.
What does a German filing cost?
Fees depend on the administrative effort and the economic significance of the transaction. They are capped at EUR 50,000, can be doubled in exceptional cases, and half the fee is due if the filing is withdrawn before Phase 2 (§ 62 GWB).
Does merger clearance cover non-compete clauses in the SPA?
Not automatically. Non-compete, non-solicitation, supply and comparable obligations remain subject to § 1 GWB and Art. 101 TFEU. Their compatibility depends, among other things, on whether they are directly related and necessary to the concentration and appropriately limited in scope.
Working with lead M&A counsel
For transactions led by other M&A firms, we act as German merger control counsel alongside the deal team. We do not run the transaction; we work with the deal team on the German merger control questions it raises. This typically includes:
- assessing at an early stage whether a German filing is required, including minority acquisitions, joint ventures, transaction-value cases and non-traditional acquisitions;
- identifying early whether competition law is likely to become an issue for the transaction;
- specifying which group, turnover and market information the deal team needs to obtain from the parties, and reviewing that information once provided;
- determining the undertakings concerned and calculating the relevant turnover on that basis;
- analysing domestic effects in foreign-to-foreign transactions;
- telling the deal team specifically what needs to change in the transaction structure or documents, for example interim covenants, information exchange or ancillary restraints;
- preparing the German-language filing on the basis of the information provided and acting as point of contact for the Bundeskartellamt;
- assessing substantive risks arising from horizontal overlaps, vertical relationships, potential competition, data, platforms or regulated infrastructure, and possible remedies where concerns arise; and
- aligning the German merger control timetable with FDI screening, the Foreign Subsidies Regulation and the overall signing and closing timetable.
The deal team remains responsible for the transaction itself, including gathering the facts and data from the parties and implementing changes to the structure and documents.
Our work on market dominance, digital market regulation and telecommunications regulation is particularly relevant where the target operates networks, platforms, infrastructure or data-driven services.
Conclusion
German merger control combines comparatively broad jurisdictional rules with a strict standstill obligation and a substantive SIEC test.
For many transactions, the central task is procedural: identifying the correct concentration, determining the undertakings concerned, calculating turnover and submitting a complete filing that starts the one-month Phase 1 period.
But jurisdiction cannot always be reduced to turnover. The transaction value threshold, special filing obligations following sector inquiries, the German rules on minority interests, joint ventures and non-traditional acquisitions, and the requirement of domestic effects can materially affect whether a transaction must be filed.
Where substantive concerns arise, the analysis is prospective. It compares competition with and without the concentration and examines horizontal, vertical and conglomerate effects as well as potential competition, innovation, market entry and regulatory constraints.
In digital and network markets, market shares can tell only part of that story. Access to data, network effects, switching costs, intermediation, infrastructure access and innovation can determine competitive strength before it appears in turnover or conventional market shares.
German merger control is therefore not merely a filing exercise. It is an ex ante assessment of how a transaction changes the structure and competitive constraints of a market before that change becomes effective.
