Budzinski/Wacker: Springer-ProSiebenSat.1-Merger
22
not occur regularly or are more often than not overcompensated by efficiency gains,
so that a welfare perspective demands reluctance concerning antitrust interventions.
This is particularly true if two-sided markets like media markets are involved. How-
ever, anticompetitive conglomerate mergers are not impossible, in particular in
neighbouring markets where there is some relationship between the products of the
merging companies. In line with the more-economic approach in European merger
control, a particular thorough line of argumentation, backed with particularly con-
vincing economic evidence, is necessary to justify a prohibition of a conglomerate
merger from an economic point of view.
We do not find the reasoning of the Bundeskartellamt entirely convincing and suffi-
ciently strong to justify a prohibition of the proposed combination from an economic
perspective. The reasons are the following:
- the Bundeskartellamt fails to continuously consider consumer and customer wel-
fare as the relevant standards.
- positive efficiency and welfare effects of cross-media strategies are neglected.
- in contrast, the competition agency sometimes appears to view profitability of
post-merger strategy options to be per se anticompetitive (efficiency offense).
- the incontestability of the relevant markets is not sufficiently substantiated.
- inconsistencies occur regarding the symmetry of the TV advertising market du-
opoly versus the unique role of BILD.
- the employment of modern economic instruments appears to be underdeveloped.
Our analysis does not imply that the proposed AS-P7S1-merger would necessarily
have been procompetitive. The requested deeper analysis could have destroyed some
of the concerns of the competition agency, but it could also have substantiated spe-
cific concerns or even entailed neglected ones. The presented evidence against the
merger, however, is not very convincing against the background of state-of-the-art
competition economics.
Thus, we conclude that the Bundeskartellamt has not embraced the European more-
economic approach in the analysed decision. It does not seem to be daring to suppose
that the presented evidence and reasoning would not have sufficed to block the
merger on the European level, given the ambitious standards for a prohibition of a
conglomerate merger laid out by Tetra Laval/Sidel and GE/Honeywell.
Eventually, two different qualifications can be raised in order to put our assessment
into perspective. First, one can question whether the current state-of-the-art in compe-
tition economics provides an adequate framework for the treatment of conglomerate
mergers. Perhaps, the anticompetitive risks of such mergers are underestimated in the
current mainstream and future research will reveal contrasting insights. Second, one
can discuss whether economic effects are overcompensated in this case by concerns
about a reduction in diversity of opinion and threats to free speech. We do not make a
value judgement about the relative importance of economic and non-economic as-