Remedies at the German FCO – Conditional clearance - Condition or Requirement

The Higher Regional Court of Düsseldorf (OLG Düsseldorf) has resolved a case resulting from a conditional clearance decision of the German Federal Cartel Office ("BKartA"), in relation to the merger between Globus Fachmärkte GmbH & Co. KG ("Globus", a German DIY store chain) and Hela Profizentren ("Hela", a DIY store chain owned by the Distributa-Group). The merger was cleared in late 2007 by the BKartA with a conditional clearance, the clearance being subject to the resolutory condition that four DIY retail stores were sold within a period of ten months of the BKartA decision.

There are three ways in which the BKartA can impose structural remedies. The BKartA can impose:

1. a requirement (Auflage) = here, clearance takes immediate effect. In case the requirement is not put into effect within the specified timeframe, the BKartA has to take action to reverse the clearance decision;