Germany: German Bundeskartellamt opens examination on Facebook's proposed acquisition of Kustomer

On 23 July 2021, the German Federal Cartel Office (Bundeskartellamt) initiated a check on whether Facebook's planned acquisition of Kustomer, a U.S. customer relationship management provider, falls under German merger control law. Specifically, the Bundeskartellamt is examining if the transaction fulfils the transaction value thresholds of the German Competition Act (GWB). If the acquisition of Kustomer does indeed exceed the threshold, Facebook will be obliged to notify the Bundeskartellamt and will only be able to finalize the deal after it is cleared by the Bundeskartellamt. The Bundeskartellamt acknowledged the fact that the transaction was already subject to an EC investigation at the time, which was initiated by a referral request under Art. 22(1) EU Merger Regulation (EUMR) with the EC by Austria. Germany does however not agree with the fact that such a referral request can be made even if national merger control thresholds are not met, as was decided in the new EC guidance regarding Art. 22 EUMR published on 26 March 2021. Under said guidance, any merger with possible detrimental effects for competition in EU member states may be subject to an EC investigation. The Bundeskartellamt stated that for a referral, a duty of notification under national competition law is necessary, which was however not proven until now.