Germany’s Proposal to Introduce “size-of-transaction” Merger Review Thresholds Steps up Wider European Debate over Acquisitions of Start-ups

On July 1, 2016, the German Federal Ministry of Economic Affairs and Energy published a proposed draft amendment to the German Act against Restraints of Competition, which would introduce a new merger control notification threshold based on transaction value. The draft (i) introduces a new merger control notification threshold based on transaction value, (ii) introduces specific criteria for the appraisal of market power in multi-sided markets (which involve products that create value by enabling direct interaction by distinct groups of customers. Examples include credit cards, health networks, software operating systems, search engines, and communications systems), (iii) aligns parental liability with EU law (joint and several liability of companies which form a single economic entity) and expands liability of legal successors (including succession by asset acquisition), and (iv) implements the EU Damages Directive.