Fine imposed on Interseroh for violating the prohibition to put a merger into effect before examination under merger control

The Bundeskartellamt has imposed a fine amounting to € 206,000 on Interseroh Scrap and Metals Holding GmbH, Dortmund, for violating the prohibition to put a merger into effect before notification.

The President of the Bundeskartellamt, Andreas Mundt, stated: "Merger projects which are subject to merger control have to be notified before they are put into effect. These have to be examined by the Bundeskartellamt before possible structural damage to competition occurs. The Act against Restraints of Competition therefore expresses in unambiguous terms the requirement for their prompt notification."

In December 2008 the former HRR Stahlschrott- und Metallrecycling GmbH & Co. KG, Henningsdorf, made use of its option to raise its share in fm Beteiligungsgesellschaft from 40% to 49%. At the same time the partnership agreement of fm Beteiligungsgesellschaft was altered to the effect that important decisions could only be made with HRR's approval. This acquisition of control was not notified as required under the merger control regulations before it was put into effect although the Bundeskartellamt had informed the companies of the obligation to do so in a previous merger control proceeding.
Interseroh subsequently notified the Bundeskartellamt of the transaction immediately following HRR's dissolution in January 2010. Up to that point HRR was a joint venture of the Alba/Interseroh Group, Berlin/Cologne and Scholz AG, Essingen. The fines decision was issued against Interseroh as the legal successor of the former fm Beteiligungsgesellschaft mbH, Lübbenau.

The level of fine was calculated on the basis of the Bundeskartellamt's guidelines on the setting of fines. The fact that the ensuing merger control examination revealed that the concentration raised no competition concerns was taken into account as a mitigating factor in the calculation of the fine. The subsidiaries of the former fm Beteiligungsgesellschaft, whose shares are now held by Interseroh, are predominently active in the market for demolition services. The parties to the merger have only relatively low market shares in this market. Interseroh's subsequent notification of the merger also worked in the company's favour.

The order to impose the fine is not yet final and can be appealed at the Düsseldorf Higher Regional Court. However, Interseroh has agreed to have the proceedings terminated by settlement.