Neither the German Federal Cartel Office in Bonn nor the EU Commission in Brussels can complain about a lack of work. The German antitrust authority has dealt with more than 3,500 merger cases over the past two years and while the EU competition watchdogs had just 58 acquisitions on their desks in 1993, the figure reached 345 last year. Admittedly, the relationship between the two offices is not as unproblematic as politicians are fond of portraying it in their fancy speeches.
Officials both in Bonn and Brussels stress with one voice that irritating disputes over principles belong to the past. For instance the former head of the cartel office, Dieter Wolf, sharply attacked the Commission on several occasions and expressed doubt that the EU authority was able to make politically-independent decisions.
In this connection, German government sources also called for the establishment of a European Cartel Office. This plan has been shelved in the meanwhile because of insufficient support from other EU member states. The acting president of the Federal Cartel Office, Ulf Boege sees co-operation with Brussels much more pragmatically.
EU Commission officials are not unhappy over this because EU Competition Commissioner Mario Monti, just like his predecessor Karel van Miert, staked everything on sharpening the profile of the Brussels authority in the area of antitrust policy.
It has chalked up successes. The responsible EU directorate-general enjoys the reputation of being one of the most efficient sections of the EU Commission, which is characterized by bureaucracy and awkwardness in many other areas. Even strict law-enforcers who stand in the tradition of German cartel law have come to acknowledge in the meanwhile that the Brussels competition overseers have made a respectable reputation for themselves in the past years.
Even if fundamental issues no longer are a bone of contention between Brussels and Bonn today, problems of co-ordination are moving more than ever into the foreground. Here the issue is mainly the catchword "subsidiarity."
Who is permitted to do what in the EU? Do all important competition policy decisions have to be made centrally in Brussels? Or should the national cartel offices be integrated more strongly?
For instance, Germany's Ulf Boege wants to insist in Brussels that the takeover of the German Aral filling-station chain by the British BP group is reviewed by the Bonn-based authority. The Germans already have made a corresponding application for referral in the case of the announced share acquisition by the Shell oil group in DEA, a unit of power supplier RWE.
In both cases however, the German cartel office is dependent on goodwill from Brussels because, according to the letter of the EU merger control order, there is only little latitude for national solo initiatives. Mergers between companies whose worldwide turnover amounts to more than five billion euros (US$4.3 billion) and each of which sells 250 million euros (US$235 million) in the EU -- but not two-thirds of the latter sum in a single EU state -- have to be decided on by the EU Commission. That is why the national authorities may place only an application for referral.
In Boege's opinion this is well-founded because the German cartel authorities are best acquainted with the special conditions found in the domestic filling-station market.
It is not certain how the Commission will decide on the German request. In the case of the merger plan between German electricity groups Beba and Viag, the Commission rejected a referral request from Bonn in January last year.
It is no coincidence that many German antitrust experts are dissatisfied with the referral procedure, saying that it is not transparent enough. In addition, the danger exists that the Commission decides arbitrarily where subsidiarity starts and ends.
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