Break up the oil companies! With his recent push to tighten antitrust law, Federal Minister of Economics Robert Habeck (Greens) not only gained a few points among drivers, but also in the anti-capitalist camp of the extreme left. The Greens politician is just rehashing an old idea of ​​the FDP.

In fact, it was the liberal former economics minister, Rainer Brüderle, who had an instrument for breaking up corporate structures drawn up in 2009 with the draft of an “abuse-independent unbundling regulation”. “In the Ministry of Economic Affairs you only have to pull the draft out of the drawer, it wasn’t that bad,” says competition economist Justus Haucap, director of the Düsseldorf Institute for Competition Economics (DICE) and former head of the Monopolies Commission.

Habeck had announced that he wanted to skim off war-related “excess profits” from energy companies. In addition, the cartel authorities should be able to “unbundle” dominant groups, i.e. break them up, even if they cannot be proven to have abused their dominant position.

Up to now it has been the task of the competition authorities to prevent the emergence of dominant companies. To date, however, antitrust law only allows intervention if such market dominance arises through the merger or takeover of companies.

However, if a company grows by itself, i.e. “organically” into such a dominant position, the competition watchdogs were powerless. A grievance that the previous black and yellow federal government wanted to remedy.

But although the tightening of antitrust law was also included in the coalition agreement in 2009, the then Economics Minister Brüderle was unable to assert himself against the resistance of the economy.

The idea: “A demerger could require companies to part with certain parts of the company or assets, such as gas stations, by selling them to independent third parties,” explains Daniel Zimmer, Director of the Institute for Commercial and Business Law in Bonn.

The former head of the German Monopolies Commission considers such an extension of antitrust law to be fundamentally sensible: “Since competition problems can also arise as a result of organic company growth, it seems logical to allow market structure control in future not only in cases of external but also in cases of such internal growth.”

“Of course, this can only be the last resort, the legal steps will be difficult,” adds Rupprecht Podszun, Director of the Institute for Antitrust Law at the Heinrich Heine University in Düsseldorf. But he is also “quite benevolent” about the demerger plans, explains Podszun: “If the alternative is ongoing behavioral control, a clear cut may even be the less invasive way.” economy warned.

Only: If the Damocles sword of breaking up constantly hangs over successfully growing companies, this could “also create economically harmful incentives,” warns competition economist Zimmer: Companies could then try to avoid growth. “In this way, the prospect of an impending divestment could prevent companies from innovating and increasing efficiency and thus have an adverse effect on the economy as a whole.”

The Monopolies Commission had therefore already recommended a compensation rule in 2010. Companies that are being forced by the state to split up “would have to be compensated for the returns they are missing out on as a result of the unbundling.”

However, they would have to take the proceeds from the forced sale into account. And, of course, they would not be compensated for monopoly profits that they lose because of the loss of their dominant position.

For the Düsseldorf DICE director Haucap, it is important that there is no arbitrariness in the unbundling of large companies. Brüderle had already made an extensive catalog of criteria a prerequisite for such an intervention. A demerger must be preceded by a detailed sector investigation by the Federal Cartel Office.

Unfortunately, in the case of refineries, this has not been done so far. Therefore, it is currently somewhat unclear which part of the recent increase in petrol prices can be attributed to the oil producers, the refineries or the gas station operators.

Haucap believes that it will be more difficult to skim off the so-called “excess profits” of the oil companies than the introduction of new unbundling rules. He considers a pure “petrol station law” to be legally vulnerable. Rules for skimming off profits should probably apply to all sectors, including vaccine manufacturers, wind power operators and armaments companies, which also benefit greatly from crises and war.

While other countries can levy production fees on oil and gas with relative certainty, this option is not available in Germany. “From a legal point of view, the whole thing is anything but trivial,” says Haucap. The federal government has also failed with the attempt to introduce a hidden profit tax with the nuclear fuel tax for nuclear power plants: The corresponding law was again cashed in by the highest court.

However, the Bonn economist Daniel Zimmer points out that it is already possible under current law to confiscate so-called excess profits by the state: “Can the Cartel Office prove that the corporations have recently set their prices independently of the cost situation, solely by exploiting the dependence of consumers , it could siphon off these (excess) profits.”

One of the accepted methods of proving such “exploitative abuse” is to compare prices with companies’ costs. If fuel prices remain high even though taxes are falling, this could be seen as an indication of abuse, says Zimmer: “In any case, in this situation it would be up to the companies to show their costs if they defend themselves against the allegation of abusive pricing want to set.”

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