The German Federal Court rules on the geographic relevant market to calculate the merger de minimis threshold (Sulzer/Kelmix)

On September 25th, 2007, the German Federal Court (Bundesgerichtshof, BGH) decided in Sulzer/Kelmix (KVR 19/07), that the geographically relevant market as referred to by section 35(2) n° 2 of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB) comprises - in contradiction to section 19(2) GWB -only the domestic market. Background and prior legal proceedings According to the de minimis clause in section 35(2) n° 2 GWB, mergers are not subject to German merger control law, and thus may not be prohibited, if they relate to a market with a turnover volume of less than €15 million in the preceding calendar year. When applying this exemption, the issue arises whether a de minimis market in that sense may be larger than the territory of Germany. In