Schalast | How to kill a merger
M&A is the art, be it on the buyer or seller side to support financing banks etc., accompany a company transaction and in particular not hinder or inhibit it. But especially in the current environment with the rapidly growing market power of international players (keyword Google, Amazon & Co.), the question of which strategies are available to competitors, in particular but not only for mega-mergers, in the interests of competition and diversity, be it at the national, European or global level.
In Germany and other EU member states, as well as in the European Union itself, there is currently a tendency to be observed in such a way that “national champions” are massively promoted by the government and antitrust authorities, including for merger control or aid. Not least the global "economic war" of the past Trump years and the fear of China and Chinese investments have clearly driven this. It is all the more important to develop effective counter-strategies and implement them.
Schalast shows how such strategies work, for example in connection with the RWG / E.ON / Innogy transaction(Prozesslawine: Schalast und BBH wollen den E.on-RWE-Deal zu Fall bringen « JUVE) as well as the broadband Vodafone merger.
Today, mega-transactions have to be registered regularly in a wide variety of jurisdictions. A certain advantage within the EU is that if the Directorate-General for Competition is responsible, national antitrust authorities usually no longer play a role (here too there are important exceptions). In the case of a large transaction, however, it is all the more interesting to include in the strategy the responsibility of jurisdictions in Eastern Europe, Asia (China, Indonesia, Vietnam, India, etc.), South America (Brazil) or the USA, which at first glance appear to be remote.
Participating in the informal preliminary procedure
In contrast to the situation in Germany, the Directorate-General for Science enables a formalized participation of third parties concerned already in their preliminary examination procedure, for example by submitting comments and reports, invitations to preliminary discussions, etc. On the other hand, it is important to make use of legal options, but on on the other hand, always act strictly legally and factually in order not to question the conversation thread he and the resilience of one's own arguments.
Merger control proceedings in Germany
In contrast to the EU and thus to FKVO, Germany has no rules for the informal preliminary procedure. Although this is controversial, it has so far been regularly confirmed by case law. Nonetheless, one should always try to establish a conversation thread in this phase, especially through objective argumentation.
After a merger project has been registered with the responsible authorities in Brussels, Germany or worldwide, the formalized possibility of participation begins everywhere - insofar as the main examination procedure has been opened. Naturally, it is of crucial importance to take advantage of the participation options in all jurisdictions concerned, in particular in connection with market surveys, statements, reports or rights to inspect files, if they exist, etc.
After the approval decision
After the approval decision, there are also regular legal protection options (in Germany, however, only if a main review procedure has been opened). Legal protection always involves cost risks. One option to deal with this is to form litigation groups in the case of large mergers.
Before you consider fighting a merger, you have to carefully examine your own chances, the resources you want to use and, of course, the options for action. In particular, a realistic but also comprehensive assessment is necessary here. We are happy to support you in this activity. Even though we are M&A lawyers, we understand how important “How to kill a merger?” can be.