'Size of Transaction' Test Under US (HSR) and German (ARC) Merger Control Rules

Frankfurt-based Antitrust partner Sebastian Jungermann discussed the "size-of transaction" test and related competition aspects of Germany's recently approved Ninth Amendment of the Act Against Restraints of Competition (ARC; Gesetz gegen Wettbewerbsbeschränkungen) as part of a panel discussion at the prominent 45. FIW-Seminar in Bonn, Germany on June 21.

The German Parliament adopted the ARC in March 2017 and the reform became effective on June 9, 2017. Among the number of changes the ARC introduced in the area of competition law is the so-called "size of transaction" notification threshold that affects transaction in which the value exceeds €400 million and the target is active in Germany "to an appreciable extent." This new threshold in Germany is actually based on the "size of the transaction" test under the US Hart–Scott–Rodino Antitrust Improvements Act of 1976 (HSR). A similar threshold will be introduced in the Austrian merger control regime shortly.

Together with his co-panelists, which included officials from the German and Austrian competition authorities, Jungermann introduced and explained the US system in order to facilitate a fuller discussion of comparisons and contrasts between the ARC and HSR.