On July 10, 2019, the DCA rejected German energy supplier MVV Energie AG’s (“MVV”) appeal against the FCO’s clearance decision, allowing its competitor EnBW Energie Baden- Württemberg AG (“EnBW”) to increase its stake to a minority shareholding of 28.76% in MVV.[1]

The DCA held that MVV, as the target, did not have standing to challenge an unconditional clearance decision because it did not affect its rights; only third parties have standing to challenge clearance decisions. The DCA confirmed that any adverse competitive consequences for the parties to a transaction did not result from the FCO’s clearance decision, but from the underlying private law agreement. While the DCA applied this rationale also in this case, and dismissed MVV’s appeal, it still acknowledged that MVV, as the target company, was not itself a party to the share purchase agreements that EnBW had concluded with the previous stock owner (ENGIE SA). It therefore expressly granted MVV leave to appeal on points of law to the FCJ. MVV already lodged an appeal with the FCJ.

[1]              See DCA decision of July 10, 2019, (2 Kart 1/18 (V)), only available in German here. FCO decision of December 13, 2017, (B4-80/17), only available in German here; an English press release is available here.