Karlsruhe. In the light of the developments in recent days, EnBW Energie Baden-Württemberg AG has decided to file an objection to the merger approval decision announced by the Minister for Economic Affairs.
"We see no other way of ensuring that the overall process takes place in a realistic competitive context", said Gerhard Goll, Chairman of the Managing Board.
The decision of EnBW is not the result of a change in the way the company views the industrial policy logic of the Ministerial approval; nor is it prompted by the preliminary ruling of the OLG Düsseldorf regional court.
"The reasons for this step are the content and the possible handling of the merger conditions."
Analysis of the merger conditions shows that some of the stipulations are already completely pointless, and this is something all the parties - in particular the German government - must have known when they formulated them. It is certainly the case that these shortcomings would have become apparent had there been a hearing on the merger conditions.
The German government has reserved the right of approval for sell-off activities. It is in no way clear, however, how this right of approval relates to existing agreements and contracts (such as pre-emption rights) and what the effects will be in competitive terms.
The fact that the approval procedure was not transparent opened up the way for advance agreements - regardless of whether such up-front agreements exist today or not.
EnBW tried in vain to arrange a meeting with State Secretary Tacke to obtain information on the structure of the merger conditions. Mr. Tacke refused to talk about the implementation of the conditions until the legal dispute has been settled.
"The only conclusion to be drawn is that the merger conditions are not only inadequate per se but also that - as we explained after the Minister had announced his approval - the way in which these conditions are to be fulfilled is totally arbitrary."
"This makes the Ministerial approval even more detrimental to competition and means that it is unacceptable on all counts", said Goll.
"It would of course be possible to rectify these shortcomings by making the process more open and more transparent with the full cooperation of all parties concerned.
As the relevant parties are obviously unwilling to remedy the situation at the present time, however, EnBW was forced to resort to the legal process - also in order to ensure compliance with the statutory deadlines for objection."