Die Ministererlaubnis als Element der deutschen Wettbewerbsordnung: eine theoretische und empirische Analyse

There is a unique particularity in German competition policy. The so-called Ministererlaubnis gives the Federal Minister of Economics the right to allow a merger that was prohibited by the Federal Cartel Office in the first step, if at least one of three reasons is met: outstanding public interests, overall (macro-) economic advantages and/or strengthening of the international competitiveness of the merging firms. In this article, both the design and the significance of the instrument itself are examined from an economic perspective. After an analysis of the previous 22 cases, based on the respective justifications and achievements, finally five options for the amendment of the instrument are discussed. The authors conclude that an adaptation of the law, both in relation to the decisive body and in terms of the admissible reasons for a Ministererlaubnis, would be necessary in order to justify the existence of the instrument in terms of welfare economics. Namely, the justifying reasons for overriding the competition authority macroeconomic advantages and international competitiveness need to be dropped. Furthermore, the role of independent bodies like expert commissions and law courts in the proceeding should be strengthened.