The German Parliament mitigates the consequences of COVID-19 by adopting a bill and temporarily amending national competition law to extend merger control review periods and suspend interest payments for antitrust fines

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.

Footnotes

[1Gesetz 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).

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Christina Renner, Florian Hinderer, Cécile Manong, The German Parliament mitigates the consequences of COVID-19 by adopting a bill and temporarily amending national competition law to extend merger control review periods and suspend interest payments for antitrust fines, 29 May 2020, e-Competitions June 2020, Art. N° 95157

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