Review periods for merger control to be temporarily extended

On May 29, 2020, the “Act to Mitigate the Consequences of the COVID-19 Pandemic in Competition Law” entered into force. It includes provisions for a one-off extension of the examination periods of the Federal Cartel Office in the context of merger control. This applies exclusively to the examination periods for merger control notifications received by the Federal Cartel Office between March 1 and May 31, 2020.

The Federal Cartel Office will then have two months instead of one month to examine pursuant to Section 40(1) sentence 1 Act against Restraints of Competition whether a main examination procedure is initiated because an in-depth examination of the merger is necessary (referred to as “first phase”). The time available for the main examination proceedings (“second phase”) is six months instead of four months after receipt of the notification.

No retroactive effect on cases already concluded, but on ongoing proceedings

This extension does not apply to applications for which the one-month deadline for the “first phase” or the four-month deadline for the “second phase” has already expired by May 29. Any resumption of the examination of concentrations already cleared is also excluded after that date. The effects of the deadline extension are therefore as follows: Notifications after June 1 are generally not affected. Notifications for which the Federal Cartel Office refrains from initiating full examination proceedings are only affected if they were received by the Federal Cartel Office after April 28. Otherwise, the time limit pursuant to Section 40(1) Act against Restraints of Competition has expired. Notifications for which the Federal Cartel Office initiates or has already initiated proceedings are affected if they have been received on or after March 1. Applications filed before March 1, for which the main examination proceedings were not initiated until after March 1, however, are not affected.

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