The Prohibition of the Proposed Springer-ProSiebenSat.1-Merger: How much Economics in German Merger Control?



Budzinski/Wacker: Springer-ProSiebenSat.1-Merger

1 Introduction

During the recent reform process of European Merger Control, the so-called ‘more-
economic approach’ has been introduced (
Christiansen 2006; Neven 2006; Roller/De
La Mano
2006). Its core idea is that merger decisions shall be based upon sound eco-
nomic analysis with thorough reception of modern economic concepts, theories and
instruments. The state-of-the-art of competition economics ought to be the yardstick
for the assessment of mergers. According to the more-economic approach in Euro-
pean merger control, the net effect of a merger on consumer welfare represents the
adequate criterion in order to distinguish between anti- and procompetitive mergers.

Merger control within the European Union, however, can be characterised as a two-
level system of merger reviewing jurisdictions (
Budzinski/Christiansen 2005; Budzin-
ski
2006): next to merger control according to the EC Merger Regulation and en-
forced by the European Commission, the competition laws of the Member States ap-
ply to mergers with predominantly national scope (in terms of the geographical distri-
bution of turnovers) and the competition authorities of the Member States enforce
these rules. Since the Member States are extensively autonomous regarding the shape
and practice of their merger control regimes, the more-economic approach merely
affects the European level. However, it represents an interesting question, to what
extent the Member State merger control regimes adhere to modern economic reason-
ing when reviewing and assessing a proposed merger. However, this is hardly touched
upon in the literature so far. As a small step into this direction, we analyse the pro-
posed merger between the Axel Springer AG and the ProSiebenSat.1 Media AG, two
German media companies, which was notified to the Bundeskartellamt (German Fed-
eral Cartel Office) under the Gesetz gegen Wettbewerbsbeschrankungen (GWB;
German Law against Restrictions of Competition) on August 12, 2005 and eventually
prohibited by the Bundeskartellamt with its decision on January 19, 2006 (
Bundeskar-
tellamt
2006). The relevant prohibition criterion is that the merger must not create or
strengthen a dominant position (§ 36 GWB). We review the prohibition decision
against the background of the compatibility of its reasoning with modern economic
theories and, in doing so, attempt to assess to what extent German merger control
incorporated the more-economic approach in this particular case.

2 Springer-ProSiebenSat.1 and the Economics of Conglomerate Mergers

First of all, we present the parties involved in this case and the relevant markets iden-
tified by the Bundeskartellamt. As a second step we give a survey of the economics of
conglomerate merger because this provides the basis for the prohibition arguments
reviewed in section 3. Before that we explore the issue in how far media markets are
different and what consequences this may have for the assessment of competition.



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