Analysis On The Prohibition Criteria In Concentration Of Undertakings

On November 10th,2011, the German Federal Ministry of Economics and Technology issued the the draft for the eighth amendment of Anti-monopoly law. The main focus on this amendment is to facilitate integration of Anti-monopoly law of Germany and European Union. According to the eighth amendment, the SIEC-Test, which is adopted in European Union, will be introduced in Germany in the future. In other words, the German antitrust agencies will review whether significant impediment is made to effective competition, while the dominant market position, which is adopted in Germany in the past, will become an example of the new standard.For the problem whether Significant Impediment to Effective Competition should be introduced in Germany, there is a fierce debate. Discussed are two main problems:1. Are there loopholes in "dominant market position"standard? In other words, is SIEC-Test more suitable to review the concentrations of undertakings? 2. Is Significant Impediment to Effective Competition more suitable to take market efficiency in the scope of the review?The first part of this thesis introduces the "dominant market position "standard and its constitutive requirements. According to the analysis of constitutive requirements, market structure is most important within the "dominant market position"standard, while market behavior only has some reference value.The second part of this thesis introduces the SIEC-Test. The effect of restricting competition is distinguished between synergistic effect and non cooperative effect. When single dominant position and collective dominant position are investigated, there is no major difference between "dominant market position"standard and SIEC-Test. The main difference between these two tests is, that the SIEC-Test can fill the loophole in "dominant market position"standard, i.e. the unilateral effects. In addition the SIEC-Test is more suitable to take market efficiency in the scope of the review.First focus of this thesis is, should the SIEC-Test be introduced in Germany, so as to fill the loophole, i.e. the unilateral effects.The existence of loophole in Germany is true. But it does not mean that the SIEC-Test should be introduced in Germany. The introduction of the SIEC-Test will bring not so many advantages, but it will cause great instability. There are two methods to fill the loophole without the introduction of the SIEC-Test:1. Interpretation of the concept of the dominant position; 2. Introduction of the concept of "dominant position of the third party".The second focus of this thesis is, should the market efficiency and the efficiency, defense be considered in Germany.After the analysis, the author thinks that the introduction of market efficiency and the efficiency defense will bring many disadvantages. In addition, the expected efficiency will not always come true. In short, the risk of introduction of market efficiency and the efficiency defense is much higher than its benefit. So the market efficiency should not be considered in German Law.