The Higher Regional Court of Düsseldorf widens the scope of application of merger control law according to Sec. 37(1) N° 4 ARC while prohibiting a merger in the copper continuous casting industry sector (A-TEC / Norddeutsche Affinerie)

On 12 November 2008, the German Higher Regional Court of Düsseldorf approved a decision of the German Federal Cartel Office (FCO) prohibiting the proposed acquisition of a 13.75% share in a company by a competitor [1]. The case concerned the issue of whether, according to German law, a share purchase of less than 25% of the total company value could be categorised as conveying a competitively significant influence so that the purchase has to be regarded as a merger according to German law. Background In contrast to Art. 3 of the EC Merger Regulation, Regulation (EC) 139/2004 [2] , the German provisions on merger control, Secs. 35 et seqq. of the German Act against Restraints on Competition (ARC), may already apply to concentrations well below the thresholds of acquisition of control

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Petra Linsmeier, Moritz Lichtenegger, The Higher Regional Court of Düsseldorf widens the scope of application of merger control law according to Sec. 37(1) N° 4 ARC while prohibiting a merger in the copper continuous casting industry sector (A-TEC / Norddeutsche Affinerie), 12 November 2008, e-Competitions November 2008, Art. N° 26684

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