“This comprehensive structural solution to significant horizontal and vertical competition concerns—the largest merger divestiture ever required by the United States—preserves competition in the sale of these critical agricultural products and protects American farmers and consumers,” said Assistant Attorney General Makan Delrahim of the Antitrust Division. “We commend the parties for working with the Antitrust Division to resolve our concerns on behalf of American consumers.”
The Department’s Antitrust Division filed a civil antitrust lawsuit in the U.S. District Court for the District of Columbia to block the proposed transaction while simultaneously filing a proposed settlement that, if approved by the court, would resolve the Department’s competitive concerns.
Without the agreed-to divestitures, the proposed merger would likely result in higher prices, lower quality, and fewer choices across a wide array of seed and crop protection products, the Department reports. The merger also threatened to stifle the innovation in agricultural technologies that has delivered significant benefits to American farmers and consumers.
Under the terms of the proposed settlement, Bayer must divest those Bayer businesses that compete with Monsanto. These include Bayer’s cotton, canola, soybean, and vegetable seed businesses, as well as Bayer’s Liberty herbicide business, a key competitor of Monsanto’s well-known Roundup herbicide.
The settlement also requires structural divestitures to remedy the competitive harm that would result from the vertical integration of certain significant Bayer seed treatment businesses with Monsanto’s leading seed businesses. Additionally, because Bayer and Monsanto currently compete to develop new products and services, the settlement requires the divestiture of certain intellectual property and research capabilities, including “pipeline” R&D projects. Finally, in order to fully prevent competitive harm from the merger, the settlement requires the divestiture of additional complementary assets that are needed to ensure that BASF has the same innovation incentives, capabilities and scale that Bayer would have as an independent competitor including, most notably, Bayer’s nascent “digital agriculture” business.
The settlement also includes, consistent with other settlements in this Administration, several provisions designed to improve the effectiveness of the decree and the Division’s future ability to enforce it.
The Department expressed thanks to its enforcement partners around the world, especially its counterparts at the European Commission, the Canadian Competition Bureau, and the Administrative Council for Economic Defense (CADE) of Brazil, for their close and constructive collaboration on this matter.