German merger control amendments: easing filings and process while widening the net for AI partnerships

The draft sets out plans for a measured but still significant adjustment to the German merger control filing regime—raising the turnover thresholds and, more importantly, introducing a new "phase 0" for deals triggering notification under the transaction value test. 

Notably, the amendment also proposes an extension to the rules that, while on its face subtle, would potentially enable the Federal Cartel Office (FCO) to more easily scrutinize AI partnerships.  

Higher turnover thresholds (should) mean fewer filings 

Under the proposals, the German turnover thresholds will be raised substantially, in relative terms: the worldwide threshold will move to EUR750million (a 50% increase), the first domestic threshold will increase to EUR75m (again, up 50%), and the second domestic threshold will be EUR20m (a 14% increase).  

If adopted, fewer deals will trigger mandatory notification to the FCO.  

Germany is not the only jurisdiction to consider such a change—across the globe we are seeing merger control thresholds increase in a bid to reduce administrative burden on merging parties (see recent amendments in France and elsewhere across the globe). 

However, the new EUR20m threshold remains at a comparatively low level against German GDP. A meaningful share of mid-cap deals (including transactions that clearly do not raise antitrust concerns, e.g., certain real estate transactions) will therefore still be caught by the regime.  

An eye on AI partnerships and killer acquisitions?

On the transaction value test, new wording will make it clear that future activities of the target are also relevant (“is expected to [have substantial operations]”).
The government cited the FCO’s inability to review Microsoft’s arrangement with OpenAI as a reason for the planned change. This highlights an increasing desire—in Germany and elsewhere—to use merger control tools to scrutinize AI partnerships and other transactions that traditionally fall below standard turnover thresholds. 

Phase 0: a speedier route for transaction value cases? 

The most notable change concerns the new "Anzeige"/phase 0 regime for transactions triggering the transaction value threshold.  

This will enable parties to submit a notice letter with reduced information requirements. The FCO will then have a two-week window to decide whether a full filing is required or not.  

The suspensory effect of the regime will stay in place, meaning that signing in parallel with closing will remain off the table for transaction value cases. However, it appears that the notice itself may not be published. This could allow parties to run the phase 0 process even before signing, without making the deal public. 

There may be a catch: in practice, many deal timelines will require a full filing to be prepared in parallel, in order that the parties are ready if the FCO calls in the transaction.  

In any event, the notice letter will be no trivial exercise to put together. It must cover current and prospective activities, horizontal and vertical overlaps, the strategic and economic rationale, and enough substance for the FCO to conclude that a phase 2 is "manifestly excluded". How aggressively the FCO draws that line will determine whether phase 0 becomes a genuine filter or just an extra procedural step. 

On balance, the proposed relief is welcome but modest. For deals demanding real transaction certainty, front-loading the full notification will likely remain the safer path.  

Anything else on the table? 

The other proposed changes are less eye-catching, such as giving the FCO powers to request certain evidence that will help it to screen for bid-rigging and limiting the term of the FCO’s president.  

There are no plans for broader structural reforms to antitrust or merger control processes.  

What next?

The draft now enters the usual departmental and stakeholder consultation before heading to the Cabinet and embarking on the legislative process.  

Changes along the way are to be expected. We will keep an eye on progress and update you on significant developments.