Wagner-von Papp, F; (2008) Die doppelte Inlandsumsatzschwelle und der Entwurf eines Dritten Mittelstandsentlastungsgesetzes (MEG III-E). Wirtschaft und Wettbewerb (WuW) , 58 (11) 1167 - 1177.
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A recent German Government Bill seeks to reduce the number of concentrations subject to notification and control in Germany. According to the Bill for a Third Act to Alleviate the Burdens for SMEs (Drittes Mittelstandsentlastungsgesetz, BR-Drucks. 558/08), § 35 (1) No. 2 of the Act against a Restraint of Competition (GWB) is to be amended to include a requirement for a minimum domestic turnover of at least two of the undertakings concerned (€ 25 million for one, € 5 million for at least one further undertaking). The article discusses the advantages and disadvantages of such a second domestic turnover threshold. It concludes that, on the one hand, the current breadth of the German notification thresholds does present a problem in multijurisdictional merger cases: Cases with virtually no relevance for German markets are caught und subject not only to substantive merger control, but are also subject to pre-merger notification requirements and to the suspension of concentrations until the concentration is cleared. On the other hand, the planned requirement for a minimum domestic turnover for a second undertaking would in extreme cases exempt even highly problematic mergers - even mergers to monopoly - from any merger control whatsoever. The author proposes a compromise solution: The second domestic turnover threshold should be introduced to determine whether a concentration has to be notified before the merger may be implemented. However, if a concentration has escaped the pre-merger notification procedure solely because of falling short of the second domestic turnover threshold, it should be possible for the Federal Cartel Office to prohibit the concentration ex post, if it fails the substantive (dominance) test.
|Title:||Die doppelte Inlandsumsatzschwelle und der Entwurf eines Dritten Mittelstandsentlastungsgesetzes (MEG III-E)|
|Keywords:||merger control, domestic turnover, Germany, competition law|
|UCL classification:||UCL > School of Arts and Social Sciences > Faculty of Laws|
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