M&A COVID-19 Wire IX

1. Temporary Extension of German Merger Control Review Periods

• On 14 May 2020, the German Federal Parliament adopted a draft law to mitigate the consequences of the COVID-19 pandemic in competition law and for the self-governing organisations of the commercial sector. In particular, this draft law provides for a temporary extension of the German merger review periods.
• This shall apply to all notifications filed with the Federal Cartel Office between 1 March 2020 and 31 May 2020 (end of the day) unless clearance has already been granted or is deemed to be granted. The initial phase I review period shall be extended from one month to two months. The phase II review period (for in-depth reviews) shall be extended from four months to six months. The extended review periods shall also apply in the event where the European Commission refers a merger review to the Federal Cartel Office during the aforementioned period. The amendment will enter into force on 29 May 2020.
• The extension of the review periods shall provide the Federal Cartel Office with sufficient time for its investigations in relevant markets, in particular as regards third parties.

2. Extension of Foreign Investment Control to Healthcare Sector

• On 20 May 2020, the German Federal Government passed into law the 15th Ordinance amending the Foreign Trade Ordinance to extend foreign investment review to the health sector. In particular, notification requirements shall apply to (direct or indirect) acquisitions of at least 10% of the voting rights in German companies that develop or manufacture pharmaceuticals, medical devices, protective equipment and in vitro diagnostics by purchasers from outside the EU or EFTA. In addition, the prohibition criterion shall be made more precise. For further information, please see also our client information in this regard.

3. State Aids

• There are reports in the media that the Federal Minister of Economics Peter Altmaier is planning a special programme for medium-sized companies. Companies with up to 249 employees as well as solo self-employed and freelancers are to be able to receive up to EUR 50,000 per month from June to December 2020, provided that they have suffered a drop in sales of at least 60% year-on-year in April and May 2020. The aim of this bridging aid would be to secure the existence of small and medium-sized enterprises affected by Corona-related conditions and closures.
• We keep you up-to-date on this and further state aid measures. Our overview "COVID-19 - State aid for affected companies", updated on 25 May 2020, can be found under this link.

4. DAC 6 Directive: New Reporting Deadlines for cross-border Tax Arrangements

• In accordance with the EU Directive 2018/882/EU (Directive on Administrative Cooperation, DAC 6), German law provides for an obligation of so called intermediaries (e.g. lawyers, financial institutions, other advisors) to notify the German Federal Central Tax Office (BZSt) of certain cross-border tax arrangements within 30 days.
• On 8 May 2020, the EU Commission proposed a three-month extension to the deadlines for filing cross-border arrangements due to the COVID-19 pandemic. According to this proposal, cross-border tax arrangements where the reporting obligation is triggered
  • between 25 June 2018 and 30 June 2020 must be reported by 30 November 2020 at the latest (previously: 31 August 2020),
  • as of 1 July 2020 must be reported within 30 days and beginning from 1 October 2020 (previously: 1 July 2020).
• The proposal provides for the possibility of a further extension of the deadlines for additional three months.
• The proposal still requires EU consent. This would leave a short period of time for the implementation into German domestic law before the start of the initial deadlines.
• Please note: The proposal, if enacted, only extends the reporting deadlines. It would have no impact on the reporting obligations. Therefore, the analysis of cross-border arrangements should be continued.
• For further information see:
  • Draft of circular letter of the German Federal Ministry of Finance dated March 2, 2020 (in German).
  • Homepage of the BZSt on DAC 6 procedure (in German).

5. COVID-19 Pandemic and Summary Court Proceedings

• The COVID-19 pandemic is increasingly occupying the courts. In summary court proceedings, the restrictions are reviewed for their legality.
• Particular attention should be paid to a judgement of the Regional Court of Mannheim dated 29 April 2020 (Case No 11 O 66/20), which expressed its opinion on business interruption insurance in the context of the COVID-19 pandemic. In the case in question, the insurance conditions only contained a reference to the Infection Protection Act and did not list any specific diseases. From this, the court deduced that, in principle, the diseases and pathogens that were notifiable under the Infection Protection Act at the time of the insured event, and thus also the COVID-19 pathogen, were covered.
• State aid has also been the subject of legal proceedings. For example, the Administrative Court of Cologne has decided on 8 May 2020 (Case No. 16 L 787/20) that the economic existence of the company had to be at risk in order to be entitled to the Corona-Soforthilfe NRW 2020. However, the private existential threat of a self-employed, for example with regard to running costs such as private rent debts, should not suffice.
• In addition, some owners of fitness studios took action against the existing closure orders by way of interim legal protection. While a majority of the courts assumed that the continued closure was lawful (e.g. OVG Berlin-Brandenburg dated 22 May 2020, ref. 11 S 41.20 and 11 S 51.20; OVG Hamburg dated 20 May 2020, ref. 5 Bs 77/20; OVG Magdeburg dated 20 May 2020, ref. 3 R 86/20) and giving priority to the common good and the protection of the health of the population, the decisions of the OVG Thuringia dated 22 May 2020 (ref. 3 EN 341/20) and VG Osnabrück dated 11 May 2020 (ref. 3 B 23/20) state that compliance with a corresponding safety, hygiene, distance and maximum occupancy concept should suffice for the opening.

If you have further questions, please contact us:

Nico Fischer – nico.fischer@pplaw.com
Tobias Jäger – tobias.jaeger@pplaw.com
Daniel Wiedmann – daniel.wiedmann@pplaw.com
Marco Ottenwälder – marco.ottenwaelder@pplaw.com
Nemanja Burgić – nemanja.burgic@pplaw.com
Stefan Weinberger – stefan.weinberger@pplaw.com