Mega Mergers in the Seeds & Agro-chem Industry Nipping the Seeds of Innovation (& Sustainability) in the Bud?

Abstract

The Seeds and Agro-Chem Industry today is a tightly knit oligopoly with only a handful of global players. Following a detailed assessment, the European Commission recently conditionally cleared three major transactions in the already highly concentrated sector - Chem China and Syngenta, Dow and Du Pont, Bayer and Monsanto – reducing the number of effective global players from six-to-four. Even though the Commission’s decisions are laudatory in terms of their economic assessment of the impact of the transactions on product, price and innovation competition, these merger approvals suggest the following gap in EU Merger Control. Taking pride in its more economic approach, the EU Merger Control in its current form neglects the need to integrate the most fundamental principles of EU law. These principles can neither be easily quantified nor put in a straitjacket of ‘cost/benefit’ or ‘efficiency’ analysis. This article accordingly calls for the need to go back to the Treaty articles and examine how EU Merger Control can effectively meet the larger policy objectives as enshrined in the Treaty articles, such as Article 11 TFEU’s ‘environmental integration rule’, while simultaneously retaining the impression of being based in sound principles of competition law and economics. Incorporation of the principle of sustainable development alongside the well-defined economic principles well aligns with an integrated and holistic approach to policy-making. The approach suggested may lead to a multiciplty of objectives – meaning that if such an approach is indeed adopted, the EU Merger Control may well need to look beyond the narrow construct of ‘efficiency’ and ‘consumer welfare’. A failure to take account of these larger objectives, however, may ironically thwart the EU Merger Control from achieving the very fundamental objective it seemingly aspires to achieve that is ‘consumer welfare’! Consumers being numerous and geographically dispersed experience the collective action problem. In the Bayer/Monsanto merger, despite this typical collective active problem, the Commission received over 55,000 emails, letters and postcards and an uncountable number of tweets on the social networking site Twitter. The citizens, who are also consumers, in their complaints requested the Commission to prohibit the transaction, as they saw the proposed merger being detrimental to ‘human health, food safety, consumer protection, the environment and the climate’. The Commission’s response to these complaints was that even though the said concerns were significant - they nonetheless could not form the basis of merger assessment, which needs to be limited to competition issues. As for the issues raised, in the opinion of the Commission, other areas of law such as those dealing with the regulatory system for pesticides and the consumer protection law could well address these other concerns. The dilemma confronting the Commission was whether to assess these transactions within the current framework grounded in well-defined scientific principles of economics (and increasingly econometrics) or in the alternative take account of some qualitative non-price considerations. The Commission evidently resorted to the former option. A decision otherwise would have been subject to intense economic criticism just like the GE/Honeywell decision, wherein the Commission proposed a very novel theory of ‘Archimedean Leveraging’, and prohibited the proposed merger. This means that for a truly effective competition policy and EU Merger Control in particular, the authorities need to ‘re-think, re-design and re-frame’ the notion of competition policy as a ‘system of inter-locking processes’ in the Raworth’s ‘doughnut’. For such a sustainability-driven thinking on innovation, that re-directs the ‘consumption choices available to consumers’ within the sustainable ‘safe and just space for humanity’, there is a visible need to think and reflect upon the ‘double limit of planetary boundaries’ and incorporate it in the everyday philosophy of competition policy.