Germany

Background

The German food retail sector has long faced intense scrutiny from the Federal Cartel Office (FCO). Following a major 2014 sector inquiry into buyer power, the regulator has consistently maintained a strict stance on industry dealmaking: blocking EDEKA’s proposed takeover of Kaiser’s Tengelmann in 2015 (a decision later overturned by ministerial permission in 2016), approving Rewe’s acquisition of Coop in 2016 only subject to divestments, and imposing stringent remedies on EDEKA and Kaufland’s acquisition of Real stores in 2020. EDEKA’s acquisition of 178 Tegut stores marks the latest chapter in these ongoing enforcement efforts. Germany’s Monopolies Commission, an advisory body to the government, criticized the FCO’s clearance as a “blow to competition,” targeting in particular the FCO’s finding of no collective dominance in the sales market despite the “Big Four”’s combined market share exceeding 90%. However, despite potential political influence, no formal process exists to overturn the FCO’s decision.

Around two years after the 11th Amendment of the German Act Against Restraints of Competition (ARC) came into force, the Federal Ministry of Economic Affairs and Energy (Ministry) published a proposal for a 12th revision of the law (the Draft Bill).[1] The Draft Bill seeks to implement the coalition agreement of the German government and is now subject to discussion and revisions in the legislative process. 

According to the German Ministry of Economics, the “German Gatekeeper Rule”[1] has proven to be an effective means of ensuring fair competition on digital markets. In its Evaluation, published earlier this month,[2] the Ministry praised the Rule for improving market conditions in the technology sector and promoting innovation and competition since it came into force four years ago. Describing it as a “valuable supplement” to the European Union’s set of gatekeeper rules in the Digital Markets Act (DMA), which has since been introduced, the Evaluation sees no need for further adjustments or harmonization. The requirement for an evaluation after four years was enshrined in the 2021 legislation, which mandated that the Ministry of Economics take into account relevant developments at the European level in its assessment of the Rule.[3]

On March 18, 2025, the German Federal Court of Justice (“FCJ”) confirmed the designation of Apple Inc. (“Apple”) as a company of “paramount significance for competition across markets” (“PCMS”) under Section 19a(1) of the German Act against Restraints of Competition (“ARC”) which enables the German Federal Cartel Office’s (“FCO”) to prohibit specific conduct of Apple in the future.[1]  This marks the FCJ’s second ruling in which the highest court affirmed the designation decision of the FCO under Section 19a(1) ARC.[2]

On February 26, 2025 the Düsseldorf Court of Appeal (“DCA”) dismissed a broad application of Germany’s transaction value threshold.[1]  The threshold introduced in 2017 is a “safety net” for exceptional cases, not an additional standard aimed to lower the threshold for merger review.  Companies in mature markets with established revenue streams face reduced risk of mandatory filings, even for high-value acquisitions.

On November 29, 2024, the German Federal Cartel Office (“FCO”) concluded that Microsoft’s hiring of nearly all of Inflection AI, Inc.’s (“Inflection”) employees together with agreements on financing and the use of Inflection’s intellectual property amounted to a “concentration” under German merger control law.  However, due to the lack of “substantial domestic operations” at the time of the acquisition, the FCO declined jurisdiction to review the case.[1]

On June 17, 2024, the German Federal Cartel Office (“FCO”) unconditionally cleared the acquisition of Olink Holding AB (publ) (“Olink”) by Thermo Fisher Scientific Inc. (“Thermo Fisher”) following the FCO’s first in-depth investigation of a case caught by the transaction value threshold.[1]