Northwestern Journal of International Law & Business Volume 9 Issue 3 Winter Winter 1989 The iB gness Mystique and the Merger Policy Debate: A Comment from West Germany Ingo L.O. Schmidt Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njilb Part of the Corporation and Enterprise Law Commons, and the International Trade Commons Recommended Citation Ingo L.O. Schmidt, The iB gness Mystique and the Merger Policy Debate: A Comment from West Germany, 9 Nw. J. Int'l L. & Bus. 618 (1988-1989) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons. The Bigness Mystique and the Merger Policy Debate: A Comment from West Germany Ingo LA Schmidt* I. INTRODUCTION After eight years of an antitrust policy dominated by the principles of the Chicago School,' which is better characterized as a protrust merger policy, the United States and the European Community are con- fronted with a new wave of mergers. The arguments for mergers are the same as in the 1960s: merger-induced bigness promotes international competition, efficiency, and technological progress. In this context, Ad- ams and Brock in their excellent analysis ask the right questions: But did merger-induced corporate giantism provide salvation for European industry? Did it provide world-class competitiveness?2 Was it a success and a model of industrial policy worthy of emulation? Adams and Brock provide answers by analyzing mergers and their * Professor of Political Economy, specializing in microeconomics, industrial organization, and antitrust policy with the Economics Department, University of Hohenheim, West Germany; Studied Economics and Law, Free University of Berlin, 1954-58: Ph.D. Economics, Free University of Ber- fin, 1961; Head of the Economic Policy Planning Section and later the International Section of the Bundeskartellamt, Berlin, 1962-73; Head of the Division for Food, Agriculture, and Forestry with the State Government of Berlin. Professor Schmidt has been a full professor at Stuttgart- Hohenheim since 1977. The author feels obliged to thank Dipl.-Volkswirt Stefan Elsser and Dipl.-Volkswirtin Sabine Richard for their helpful assistance in preparing this contribution, and Mr. David Phillips, B.A., M.A., English language lecturer at the University of Hohenheim, for his help in reviewing the Eng- lish version of this Article. I See Schmidt & Rittaler, A CriticalEvaluation of the Chicago School of Antitrust Analysis, in STUDIES IN INDUSTRIAL ORGANIZATION VOL. 9 (H. de Jong & W. Shepherd eds. 1989). 2 Adams & Brock, The Bigness Mystique and the Merger Policy Debate: An InternationalPer- spective, 9 Nw. J. INT'L L. & Bus. 1, 8 (1988). West Germany and the Bigness Mystique 9:618(1989) post-merger performance in the United Kingdom, France, West Ger- many, Italy, and Japan. Their country analyses leave space for further work. Therefore, this Article provides deeper insight into West Ger- many's merger activity and its merger results. The Article first charts the development of concentration in the 1970s and 1980s. Second, it presents two empirical studies which rely on West German data, and which analyze the nexus between technological progress, firm size, and efficiency. Finally, two case studies illustrate problems induced by merger and exemplify the author's sceptism on bigness. II. The Development of Concentration in West Germany A. The Merger Activity Since 1970 Official merger statistics are compiled in West Germany by the Fed- eral Cartel Office, the Bundeskartellamt. The following table is based on data from the Bundeskartellamt. It gives an overview of the merger ac- tivity and structure since 1970. Due to changes in the law on merger reporting, the Bundeskartelamt's figures are imprecise and have to be interpreted with caution.3 Despite these methodological caveats, some general conclusions on the merger activity and merger structure can be drawn. As table 1 shows, merger activity rose significantly over the last seventeen years. In the 1970s, the number of mergers grew exponentially followed by a slight decline in the early 1980s. Since 1984, merger activ- ity has accelerated, and, in 1986, reached a hitherto unparalleled peak of 802 mergers. According to the latest data, this trend seems to be contin- uing. In 1987, the number of mergers amounted to 887.4 There are three types of merger most commonly used, horizontal, vertical, and conglomerate. Horizontal mergers are divided into hori- zontal mergers with or without product extension. Product extension mergers can be understood as a border-line case of horizontal and con- glomerate mergers. The Bundeskartellamt subsumes product extension mergers under the category of horizontal mergers, because the Law against Restraints of Competition' makes it easier to prosecute horizon- tal rather than conglomerate mergers. Horizontal mergers remain the largest single category throughout the whole period of inquiry. Their share oscillated around 70%, with peaks in the early 1970s (1972: 81.6% 3 For the methodological problems, see Monopolkommission, Fifth Main Report, Hauptgutachten 1982/1983: Okonomische Kriterien fiir die Rechtsanwendung %698 (1984). 4 See Monopoly mit Milliarden, Wirtsehaftswoche, Dec. 9, 1988, at 41. 5 The Law Against Restraints of Competition, Gesetz gegen Wettbewerbsbeschrdnkungen, en- acted on July 27, 1957, became effective on January 1, 1958 [1957] BGBl.I, 1081. Northwestern Journal of International Law & Business 9:618(1989) Table 1: Mergers Notified under Section 23 of the Act against Restraints of Competition Type Horizontal without with Vertical Conglomerate Total Product Extension Total Year Number % Number % Number % Number % Number % Number % 1970 138 47.4 79 27.1 217 74.6 27 9.3 47 16.2 291 100.0 1971 116 53.0 51 23.3 167 76.3 19 8.7 33 15.1 219 100.0 1972 170 63.7 48 18.0 218 81.6 21 7.9 28 10.5 267 100.0 1973 148 60.9 48 19.8 196 80.7 19 7.8 28 11.5 243 100.0 1974 163 51.3 72 22.6 235 73.9 50 15.7 33 10.4 318 100.0 1975 264 58.9 72 16.1 336 75.0 53 11.8 59 13.2 448 100.0 1976 215 47.5 68 15.0 283 62.5 113 24.9 57 12.6 453 100.0 1977 274 49.5 93 16.8 367 66.2 122 22.0 65 11.7 554 100.0 1978 280 50.2 116 20.8 396 71.0 93 16.7 69 12.4 558 100.0 1979 273 45.3 113 18.8 386 64.1 111 18.4 105 17.4 602 100.0 1980 226 35.6 175 27.6 401 63.1 140 22.0 94 14.8 635 100.0 1981 283 45.8 104 16.8 387 62.6 124 20.1 107 17.3 618 100.0 1982 307 50.9 69 11.4 376 62.4 73 12.1 154 25.5 603 100.0 1983 264 52.2 71 14.0 335 66.2 53 10.5 118 23.3 506 100.0 1984 305 53.0 72 12.5 377 65.6 64 11.1 134 23.3 575 100.0 1985 347 48.9 102 14.4 449 63.3 77 10.9 183 25.8 709 100.0 1986 469 58.5 102 12.7 571 71.3 74 9.2 157 17.6 802 100.0 Sources: Monopolkommission, Fifth Main Report, Baden-Baden 1984, para. 700, and Bundeskartellant, Activity Report 1983/1984, in: BTDr 10/3550, p. 131, and Activity Report 1985/1986, in: BTDr 11/554, p. 119. and 1973: 80.7%) and lows in the early 1980s (1981: 62.6% and 1982: 62.4%). In 1986, the percentage of horizontal mergers rose sharply to 71.3%, which is the highest percentage since 1975. Nevertheless, the dominant role of the horizontal mergers should not be overrated, because some of the product extension mergers could also be understood as conglomerates. Vertical mergers have experienced the largest percentage variations. For example, in 1976, the percentage of vertical mergers was about two times higher than in 1975. It is, apart from the horizontal mergers with product extension, the only category which has not shown a significant upward trend since the amendment of the Law against Restraints of Competition in 1973. 6 Because of their small share, vertical mergers are of minor importance for antitrust policy. 6 Second Amendment to the Law Against Restraints of Competition of August 4, 1973, [1973] BGBL.I 917. West Germany and the Bigness Mystique 9:618(1989) The importance of conglomerate mergers has risen since 1973. Ex- cept for the 1986 value, their share showed an overall positive trend. B. The Role of the Largest West German Industrial Firms An in-depth analysis on the growth rate of West Germany's 100 largest firms reveals a double-edged development in the role of the largest West German industrial firms. On the one hand, the slight decrease in the share of the aggregate value added7 of the leading 100 firms, suggests that the danger of concentration of productive resources under the con- trol of a few decision making units is not acute. On the other hand, the increase in the share of the aggregate value added of the ten largest West German companies indicates that these firms need to be watched with care. Firm size can be measured in several ways. The underlying measure in table 2 is that of value added.' Table 2 shows a slight decrease in Table 2: The Share of the 100 Largest German firms Year Share of the Aggregate Value Added 1978 19.3% 1980 19.5% 1982 19.1% Source: Monopolkommission, Seventh 1984 18.7% Main Report, Baden-Baden 1986 18.8% 1988, para.