On August 19, 2019, the German Federal Minister of Economic Affairs, Peter Altmaier, applied the rarely used ministerial right[1] to overrule the FCO’s prohibition of a joint venture between Miba AG (“Miba”) and Zollern GmbH & Co. KG (“Zollern”) and cleared the transaction subject to commitments.[2] The Monopolies Commission, an advisory body to the German federal government, had previously issued a non-binding recommendation to reject Miba’s and Zollern’s request for ministerial clearance.[3]

Despite the FCO’s concerns that a joint venture between Miba and Zollern would stifle competition in the already highly concentrated market for the production of hydrodynamic plain bearings,[4] the Minister found that overriding public interests—in particular the interest of safeguarding know-how and innovation potential in the areas of clean energy and sustainability—outweighed competitive concerns in this case. The ministerial authorization is subject to several commitments, including that (i) Miba and Zollern will not change the size of their shareholdings in the joint venture for the next five years, (ii) they contribute their know-how to the joint venture in accordance with the joint venture agreement, and (iii) they invest €50 million in Germany over the course of the next five years.

Ministerial authorizations are rarely granted[5] and typically concern large scale transactions[6]. However, in this case, the authorization concerned medium-sized companies. Further—and in contrast to most previous authorizations—the minister did not base this authorization primarily on the preservation of jobs or regional access to important goods and services, but referred to the transaction’s importance for the success of Germany’s transition to renewable energies.

[1]              Section 42 ARC provides the Federal Minister for Economic Affairs and Energy with the ability to issue a ministerial authorization if the negative effects of a merger on competition are outweighed by benefits to the economy as a whole, or if the merger is justified by an overriding public interest.

[2]              Federal Minister of Economic Affairs and Energy’s decision of August 19, 2019, only available in German here. See also the Ministry’s Press Release, August 19, 2019, only available in German here.

[3]              Monopolies Commission Special Report No. 81 and press release of April 18, 2019, only available in German here. The Monopolies Commission criticized the ministerial clearance in a statement of August 19, 2019, only available in German here.

[4]              Miba/Zollern (B5-29/18), FCO decision of January 17, 2019, only available in German here. See also German Competition Law Newsletter January – February 2019, p. 6, available here.

[5]              This is only the tenth ministerial authorization since the introduction of merger control in Germany in 1973.

[6]              See the most recent Ministerial Authorization concerning EDEKA’s acquisition of Kaiser’s Tengelmann.