Merger control: Additional threshold in the EU and in Germany?

On 10 March 2016, EU antitrust commissioner Vestager said during a public conference that the Commission is considering whether the current turnover based notification thresholds should be complemented by a value based threshold.

The commissioner’s concern is that the current system, under which notification with the Commission solely depends on the turnover of the parties, might not be sufficient to guarantee that the Commission is able to review transactions that clearly affect competition. In that regard she referred to the acquisition of WhatsApp by Facebook, where Facebook paid USD19 billion but where the Commission had no genuine jurisdiction since WhatsApp’s EU turnover was below the relevant turnover threshold.

The commissioner underlined that the value of a merger could be a suitable additional criterion to identify whether notification with the Commission is required. However, she made clear that any new rule must be carefully considered and, above all, any new threshold would have to meet one fundamental principle: it would have to be absolutely clear so that the parties to a merger should have no doubt whether notification is required.

The Commission’s initiative comes only a couple of weeks after the German government revealed its intention to introduce an additional threshold for merger control notification as part of the upcoming amendment of the German competition law. The additional threshold shall be based on the transaction value (e.g. the purchase price) and shall, in particular, serve the goal to bring acquisitions of internet start-ups into the scope of merger control review. It was reported that the government could set the transaction value, which triggers notification, at a value of EUR 500 million.

It remains to be seen whether the initiatives both at EU and German level will result in any modifications of the current merger control set ups, and if so what exactly the additional thresholds will be.

If you would like more information on how additional thresholds may affect your business, please contact Christoff Henrik Soltau.