Gleiss Lutz obtains injunction in proceedings regarding ministerial authorisation for proposed Edeka/Kaiser’s Tengelmann merger

Gleiss Lutz has secured an important legal victory for Markant AG in appeal proceedings against the ministerial authorisation granted for the proposed merger between supermarkets Edeka and Kaiser’s Tengelmann: On 12 July 2016 the Düsseldorf Higher Regional Court granted the application to establish suspensive effect of the appeal. As a result, the merger cannot proceed even if the collective bargaining agreements between Edeka and certain trade unions, one of the requirements of the ministerial authorisation, are concluded.

The Federal Cartel Office had prohibited the takeover of Kaiser’s Tengelmann by Edeka on 31 March 2015, as it was expected to significantly restrict competition both on the sales and several purchasing markets in the food-retailing trade. Edeka and Kaiser’s Tengelmann sub-sequently lodged an appealed against the FCO’s decision with the Düsseldorf Higher Region-al Court and also applied for a ministerial authorisation from the German Federal Minister for Economic Affairs pursuant to section 42 Act Against Restraints of Competition. The ministe-rial authorisation was granted on 9 March 2016, overruling the German Monopolies Commis-sion. Markant and Rewe appealed against the authorisation and applied for the Court to estab-lish suspensive effect of their appeal in injunction proceedings. This injunction was granted by the Court on 12 July 2016. The appeals of Edeka and Kaiser’s Tengelmann against the prohibition decision and of Markant and Rewe against the ministerial authorisation are still pending before the Düsseldorf Higher Regional Court.

Markant AG was advised and represented by the following team of Gleiss Lutz lawyers: Dr. Matthias Karl (lead, partner), Patrick Grüner (both competition/antitrust), Prof. Dr. Michael Uechtritz (partner, constitutional and administrative law), Dr. Katrin Haußmann (partner), Muriel Kaufmann (both employment) (all Stuttgart). Senior advisor: Prof. Dr. Rainer Bechtold (competition/antitrust, Stuttgart).