Foreign-to-Foreign Mergers: The German Guidance, a Blueprint for a European Reform?

摘要

The new guidance document on domestic effects facilitates the merging parties' assessment whether they have to notify a foreign-to-foreign merger to the BKartA. It has increased legal certainty for merging parties. In the author's view, the guidance document has also prevented an increase in the number of notifications with regard to merger projects that do not have appreciable effects in Germany despite the fact that the turnover thresholds are exceeded. In the absence of the new guidance document, an interpretation of Art. 130 (2) GWB would have probably gained more acceptance according to which the introduction of the second domestic turnover threshold in German law has to be understood as an application of the domestic effects clause to merger control. According to this interpretation, after the introduction of the second domestic turnover threshold, there would not have been any room for a further limitation of jurisdiction on the basis of Art. 130 (2) GWB in cases, in which the domestic turnover thresholds are exceeded, because the principles of the effects clause were fully implemented by introducing the new turnover threshold. Can the guidance document serve as a blueprint for a reform of the EU approach on domestic effects? It is clear that the Commission's current approach is simple and offers a maximum of legal certainty. However, it is also a fact that 5-10 per cent of cases, in which it may be apparent that effects on the EEA are lacking, are a lot. The Commission made some efforts to reduce the informa- tion burden in these cases in the context of the merger simplification project. However, going further would be useful. The German guidance document may be helpful in this respect, because it shows that there are ways how to categorise cases as to whether they have appreciable domestic effects without compromising an effective protection of competition. With regard to spillover effects, a broader approach might be necessary in the context of EU merger control. In contrast to German law, EU law provides for an integrated application of the significant impediment to effective competition (SIEC) test and Art. 101 TFEU as part of a merger investigation [Art. 2 (4) ECMR]. Therefore, domestic effects in the context of EU merger control extend further. As a consequence, an approach like the 20 per cent safe harbour rule would not fit in. Another marked difference is that domestic effects are explicitly mentioned in Art. 130 (2) GWB as a prerequisite for the application of German competition law. In EU law, the merger control regulation does not mention this issue explicitly. However, EU law recognises the effects doctrine. If the Commission were ready to use this principle as a starting point for a narrower interpretation of the filing obligations under the EU merger regulation, it might be possible to address the issue without a change of the EU merger regulation, for example, in the context of a revised, consolidated jurisdictional notice.