Baker McKenzie advised the Cologne Cellitinnen in the merger of their foundations under merger control law. With the closing of the merger of the Cologne hospital operators Stiftung der Cellitinnen zur heiligen Maria ("Cellitinnen Nord") and Stiftung der Cellitinnen gemeinnütziger e.V. ("Cellitinnen Süd"), the new exemption for hospital mergers (Section 187 (9) GWB) is applied for the first time. With the 10th GWB amendment, the German legislator introduced a temporary exemption for certain hospital mergers. The background to the provision was the increasing demand for more consolidation in the hospital sector and, at the same time, the restrictive decision-making practice of the Federal Cartel Office in the field of hospital mergers.
"According to Section 187 (9) of the GWB, a merger in the hospital sector is not subject to German merger control if, among other things, the project provides for a concentration of hospitals across different locations and if there is a notice of payment from the Structural Funds for Hospitals of the Federal Office for Social Security (BAS)," explains Prof. Dr. Christian Burholt, who was the lead advisor for the merger control and antitrust law aspects of the transaction.
Cellitinnen Nord and Cellitinnen Süd had originally notified the merger of their hospitals to the Federal Cartel Office back in 2018. However, the merger control notification was withdrawn due to concerns raised by the Federal Cartel Office. Following the introduction of the exemption in 2021, the project could be implemented in December 2022 without merger control. In October 2022, the Federal Office for Social Security (BAS) had issued a corresponding payment notice for the cross-location concentration of the Cellitinnen hospitals, so that the requirements of Section 187 (9) GWB were met.
The new group will operate under the name "Stiftung der Cellitinnen" and will run, among other things, eight hospitals in Cologne, three hospitals in Wuppertal and Bergheim as well as dozens of other facilities, in particular those providing care for the elderly and disabled With a total of approximately 13,800 employees, it will generate total revenues in excess of the billion thresholds.
Baker McKenzie had already accompanied the merger project of the two Cellitinnen since 2017. Baker McKenzie also advised the Cellitinnen on the 10th GWB amendment, subsequently supported them in the complex hospital structure funds proceedings and thus created the conditions for the exemption from merger control.
Legal advisor:
Baker McKenzie
Lead:
Antitrust/Merger control: Christian Burholt (lead partner, Berlin)
Team:
Antitrust/Merger control: Nicolas Kredel (partner, Düsseldorf), Jan Kresken (counsel, Düsseldorf), Ann-Kristin Freiheit (associate,
Frankfurt)