Ministerial approval

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In German competition law, ministerial approval means the decision of the Federal Minister for Economic Affairs and Energy (BMWi) to nevertheless allow a company merger that has been prohibited by the Federal Cartel Office .

General

Business combinations are to be prohibited by the Federal Cartel Office in accordance with § § 35 et seq. GWB if this creates or strengthens a dominant position . A prohibition is only not possible according to Section 36 (1) clause 2 GWB if the merger also "improves the conditions of competition and these outweigh the disadvantages of market dominance". The law generally assumes that market dominance will result in a worsening of the competitive conditions, so that the exemption in Section 36 (1), second sentence, GWB enables the Federal Cartel Office to make a different decision. If there is a restriction of competition - and evidence of a predominant improvement in competition cannot be provided - a merger must be prohibited. In this way, the legislature has given the Federal Cartel Office clear competition law requirements, to which it is bound in its administrative decisions.

Basis of the ministerial approval

The ministerial permit intervenes as an exception in this purely competition law decision-making process of the Federal Cartel Office by using criteria that are outside of competition law. A ministerial permit disregards the antitrust decision of the Federal Cartel Office and must be based on the criteria that are finally listed in Section 42 (1) GWB . According to this, the Federal Minister for Economic Affairs and Energy can, upon application, grant permission for a company merger prohibited by the Federal Cartel Office if

  • the macroeconomic advantages of the merger outweigh the restraint of competition or
  • an overriding interest of the general public justifies the merger.

The law stipulates that the ministerial permit may only be issued if the extent of the restriction of competition does not endanger the market economy .

The two requirements mentioned contain vague legal terms such as “macroeconomic benefits” and “general interest”, the content of which is to be determined through interpretation . Both legal terms concern the common good that lies outside competition law. The two legal terms “always assume that the merger will not only benefit the companies involved, but that there is a general state, economic or socio-political justification for the merger”. The permit may only be granted if the other state, economic or socio-political reasons have great weight in the individual case, have been specifically proven and if the state cannot take remedial measures in accordance with competition. The interests of the companies involved in the merger are only significant in connection with the macroeconomic advantages of the merger if and to the extent that they are in line with the public interest in the exceptional approval of market dominance through merger. This provision is intended to recognize that it may be appropriate to allow exceptions due to a particular decision-making situation or a particular situation . The minister is bound by the prohibition decision of the Federal Cartel Office and may only weight it by weighing its decision against the criteria of Section 42 (1) GWB determined by him .

Formal requirements

The Federal Cartel Office has a written disposal have issued a ban and at least one party to the proposed merger, companies must submit an application for ministerial approval within one month of service. In the ministerial approval process, the BMWi, like the Federal Cartel Office, is the antitrust authority . The procedure of the ministerial approval is therefore based on the procedural law of § § 54 ff. GWB.

Material requirements

The material requirement is a public interest in the prohibited merger. In addition to the two alternative requirements of the GWB, the competitiveness of the companies involved in markets outside Germany must also be taken into account (Section 42 (1) sentence 2 GWB). According to Section 42 (2) GWB, the permit can be provided with conditions and requirements . The ministerial approval procedure begins with an expert opinion by the Monopolies Commission (Section 42 (4) GWB), but the minister is not bound by its findings.

history

When it came into force in January 1958, the GWB did not provide for ministerial approval. It was only inserted into the amended GWB in August 1973, together with provisions on merger control . The ministerial approval should calm the critics of merger control and serve as a corrective for the as yet unforeseeable effects of the control provisions. The first ministerial decision in the VEBA / Gelsenberg case that was issued was already in January 1974 . In June 1975 the Ministry rejected the application made in the case of VAW / Kaiser / Preussag . In December 1981 it approved the merger of IBH-Holding and Wibau, in September 1989 the merger of Daimler-Benz / MBB-ERNO was approved with conditions, the merger between Kali und Salz AG and the Potash Corporation of Saskatchewan , however, took place in July Rejected in 1997. E.ON / Ruhrgas was approved with conditions in September 2002.

The Edeka / Kaiser's Tengelmann case , the merger of which was approved against conditions in March 2016, was also controversial . In this case, the sat Higher Regional Court of Dusseldorf in an urgent decision by Sigmar Gabriel initially granted ministerial approval for the acquisition of Kaiser's Tengelmann by Edeka on July 12, 2016 overridden by stated: "Permission legally it after a preliminary examination in summary proceedings as illegal. "

There were a total of 22 applications for ministerial approval (as of March 17, 2016), 9 of which were granted.

Legal consequences

If the minister grants permission, this constitutes an administrative act which, according to Section 63 (1) GWB , can be attacked as an order of a cartel authority through the legal remedy of the complaint . As can be seen from the reverse conclusion from Section 64 (1) GWB, the complaint has no suspensive effect . Therefore, the complaint can be combined with the urgent application pursuant to Section 65 (3) GWB to order the suspensive effect of the complaint in whole or in part. The ministerial approval is not an act of political discretion, but - with a wide margin of appreciation in the determination of the common good - a legally bound administrative act. A ministerial permit may be granted if the merger in question is necessary to achieve the common good - this is not the case if a suitable alternative purchaser is available who is likely to be at less severe competitive disadvantages. According to Section 63 (4) GWB, the higher regional court responsible for the seat of the Federal Cartel Office is responsible for the complaint and the urgent application . Since the Bundeskartellamt is located in Bonn and the state of North Rhine-Westphalia has assigned jurisdiction for cartel matters of the higher regional courts to the higher regional court of Düsseldorf by ordinance , this court is responsible. The court examines not only the legality , but also any errors of judgment of this ministerial discretionary decision . On the other hand, according to Section 71 (5) sentence 2 GWB, the assessment of the overall economic situation and development is withdrawn from the judicial review. Either an appeal on points of law pursuant to Section 74 (1) GWB or a non-admission appeal pursuant to Section 75 (1) GWB to the Federal Court of Justice is possible against the decisions of the Higher Regional Court on complaints and urgent requests .

The suspensive effect of the complaints against the ministerial permit was ordered by the Düsseldorf Higher Regional Court in the case of Edeka / Tengelmann on July 12, 2016, because it saw, among other things, the concern of bias on the part of Minister Sigmar Gabriel , as he considered the Higher Regional Court to be during the decisive phase of the proceedings Allegedly conducted background discussions, the content of which was neither put on record nor disclosed in the complaint procedure.

criticism

The ministerial permit is intended to counter conflicting goals between pure protection of competition and overarching political goals. However, it is a very vague general clause that contradicts the principles of the rule of law . It is seen as economic control and a form of state dirigism , a means of "micro-control" of economic processes. Critics also saw the authority of the Federal Cartel Office undermined, because the companies concerned could hope to still obtain approval from the minister. The ministerial permit disregards official decisions that were made on the basis of antitrust assessments through vague arguments for the common good. In the previous ministerial permits, no distinction was made between the two legal terms, but only examined the benefit for the common good. Opposing voices consider the ministerial approval to be an industrial policy corrective, through which overarching economic aspects are taken into account, which are not sufficiently expressed in a purely competitive perspective.

literature

  • Rupprecht Podszun: The Ministerial Permit - Breaking Politics into Economic Law , NJW 2016, p. 617.

Web links

Individual evidence

  1. ↑ Friederike Mattes, The Ministerial Permit in Merger Control , 2004, p. 19
  2. ↑ BT-Drs. 6/2520 of August 18, 1971, draft law of the Federal Government amending the Act against Restraints of Competition of August 18, 1971 , p. 31
  3. ↑ BT-Drs. 6/2520 of August 18, 1971, draft law of the Federal Government amending the Act against Restraints of Competition of August 18, 1971 , p. 31
  4. ↑ Ernst-Joachim Mestmäcker / Winfried Veelken, in: Ulrich Immenga / Ernst-Joachim Mestmäcker, Commentary GWB , 3rd edition, 2001, § 42 marginal no. 26th
  5. ↑ Friederike Mattes, The Ministerial Permit in Merger Control , 2004, p. 20
  6. ↑ Friederike Mattes, The Ministerial Permit in Merger Control , 2004, p. 53
  7. ↑ No. 25/2016 Takeover of Kaiser´s Tengelmann by EDEKA: ministerial approval stopped ( memento of the original from August 28, 2016 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , olg-duesseldorf.nrw.de, July 12, 2016, accessed on July 12, 2016 @1@ 2Template: Webachiv / IABot / www.olg-duesseldorf.nrw.de
  8. ↑ In 4 cases the permit was granted with conditions, in 1 case a partial permit with conditions was granted, 2 cases were approved with a positive opinion of the Monopolies Commission, 2 further cases were approved contrary to the opinion of the Monopolies Commission, 6 cases were prohibited and 7 cases were approved withdrawn.
  9. ↑ OLG Düsseldorf, decision of July 25, 2002, Az.VI-Kart 25/02 (V)
  10. ↑ Düsseldorf Higher Regional Court, decision of July 12, 2016, Az. VI-Kart 3/16 (V), ( Memento of the original from September 17, 2016 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. S. 16. Website OLG Düsseldorf. Retrieved August 24, 2016. @1@ 2Template: Webachiv / IABot / www.olg-duesseldorf.nrw.de
  11. ↑ Ordinance on the formation of joint cartel courts and on jurisdiction in civil disputes according to the Energy Industry Act . From August 30, 2011. Law and Ordinance Gazette (GV. NRW.) 2011 edition No. 21 of September 23, 2011
  12. ↑ Court stops ministerial approval for Tengelmann takeover by Edeka. In: sueddeutsche.de. July 12, 2016, accessed on July 12, 2016 (English): “In the opinion of the judges of the 1st Cartel Senate, Gabriel should not have decided whether to grant the license. The reason given by the higher regional court included a possible bias of Gabriel. He had "secret talks" in the crucial phase of the licensing procedure. " ; OLG Düsseldorf, decision of July 12, 2016, Az.VI-Kart 3/16 (V), p. 18
  13. ↑ Norbert Reich, Merger control and fusion license, ZRP, 1971, p. 236 f.
  14. ↑ Jochen Fatschek, The consideration of non-competitive aspects in the application of merger control , 1977, p. 138 f.