COVID-19: Temporary Amendments to German Competition Law Enter Into Force

Two key amendments to the German competition law entered into effect on May 29, 2020, temporarily extending merger control review periods and temporarily suspending interest payments for antitrust fines, further to a bill adopted by the German Parliament to mitigate the consequences of the coronavirus (COVID-19) pandemic on trade.

Extension of Merger Control Review Periods

Due to the COVID-19 pandemic and the strict lockdown measures imposed in many jurisdictions, the Act[1] anticipates that the Federal Cartel Office (FCO) may face challenges in obtaining relevant information from market participants when assessing notified transactions.

Against this background, the Act established a one-time extension of the FCO’s review periods for transactions notified to the FCO between March 1 and March 31, 2020:

• Extending the Phase I review period from one month to two months after submission of the complete filing.
• Extending the Phase II review period from four to six months after submission of the complete filing.

These extended review periods shall also apply in the event that the European Commission refers a notified transaction to the FCO between March 1 and March 31, 2020. However, there will be no extension if, on the Act’s date of effectiveness,

• the standard Phase I period of one month has expired without the FCO having informed the notifying undertakings that it has initiated Phase II proceedings;
• the standard Phase II review period of four months has expired; or
• the transaction has already been cleared by the FCO.

Suspension of Interest Payment on Fines

The Act provides for a suspension of the statutory obligation to pay interest on antitrust fines for which payment relief (payment deadline or installment payment) has been or will be granted by the FCO. In other words, a company that was fined under the German competition law can apply for such payment relief if it demonstrates to the FCO that it cannot reasonably be expected to pay the respective fine immediately due to its economic circumstances.

In this respect, the Act acknowledges that the financial situation of companies may deteriorate in the short term as a result of the economic consequences associated with the COVID-19 pandemic to such an extent that a payment relief is required. The suspension shall apply until June 30, 2021.

For an up-to-date tracker of COVID-19’s impact on merger review deadlines and procedures in jurisdictions around the world, please refer to our global tracker.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Frankfurt
Michael Masling

Brussels
Izzet Sinan
Christina Renner

London
Frances Murphy
Omar Shah

[1] Gesetz zur Abmilderung der Folgen der COVID-19-Pandemie im Wettbewerbsrecht und für den Bereich der Selbstverwaltungsorganisation der gewerblichen Wirtschaft, Bundesgesetzblatt 2020 I, p. 1067 (the Act).