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Towards a ’ministerial’ authorisation in the European merger control procedure? A German point of view

The European Commission, and in particular the Commissioners responsible for competition law, have so far been very successful in countering political influence on their merger control decisions. The prohibition of the Siemens-Alstom merger is the latest proof of this. On the economic front, the European Union has so far done very well with this approach and reform does not seem very desirable. However, it is not clear that merger control in Europe, focusing solely on the objective of protecting competition, can be maintained in the long term. The recent initiative of the French and German Ministers of Economy may reflect a certain degree of general unease about the total exclusion of (industrial) political considerations. The related criticism, which seems to find an even deeper echo in French public opinion than in Germany, must be taken seriously. In these circumstances, it is especially necessary to prevent any political influence behind the scenes. Nor does it seem desirable to reform the control procedure by entrusting the Directorate-General for Competition with the task of weighing simultaneously - and thus mixing - competitive and non-competitive aspects in a single step. Rather, it is to be hoped that the Directorate-General for Competition will continue to carry out an exclusively competitive assessment. If it were really necessary, however, other general interest concerns could be taken into account by a politically responsible authority such as the College of Commissioners. This should be done in a separate and subsequent procedure ("phase III"), such as the German or French ministerial approval procedures.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. The European Commission's ban on the planned merger of Siemens' and Alstom's railway activities on 6 February 2019 has drawn strong criticism in certain French and German political circles. Only ten days later, the two Ministers of Economy, Bruno Le Maire and Peter Altmaier, argued in favour of a modification of the European merger control procedure. According to them, it should be possible to approve proposed mergers for political reasons despite possible competition problems. The objective of encouraging the formation of European champions is clearly rooted in an industrial policy. In their "Franco-German Manifesto for a European industrial policy fit

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  • University of Würzburg


Florian Bien, Towards a ’ministerial’ authorisation in the European merger control procedure? A German point of view, May 2019, Concurrences N° 2-2019, Art. N° 89857, pp. 2-7

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