EDEKA/Kaiser’s Tengelmann–prohibition of merger overridden by Minister for Economic Affairs in Germany–politics trump competition law?

EDEKA/Kaiser’s Tengelmann–prohibition of merger overridden by Minister for Economic Affairs in Germany–politics trump competition law?



 

By: Dr. Tobias Caspary, Lars Görlitz
 

On 17 March 2016, the German Federal Minister for Economic Affairs and Energy Minister (the Minister) approved the acquisition of 450 branches of the German supermarket chain Kaiser's Tengelmann (KT) by EDEKA, imposing far-reaching conditions, but overturning a previous prohibition decision by the German Federal Cartel Office (FCO).  This alert reflects on the impact of the Minister's decision to reverse a prohibition decision by the FCO.  It will show that Germany is not the only EU Member State where the government can overturn decisions of generally independent competition authorities (one prominent example for a similar regime being the UK).  In practice, however, a revision of an original prohibition decision by the respective government will only be a measure of last resort and will be limited to cases that attract the highest level of publicity and attention.
 

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