Shared interests govern approach to merger cases

Date: 23/11/00

By Tim Jones

THE big success story of EU-US commercial relations in recent years has been that between the competition authorities.

This is not to say that the privately expressed feelings of some US companies towards the European Commission's directorate-general for competition or recent Commissioners Mario Monti and Karel Van Miert are repeatable. Some of them are not.

It also does not mean that American politicians are immune to lobbying by the more persuasive firms. The recent letter of complaint to Monti from Mike De Wine, the Republican chairman of the senate's anti-trust committee, and the panel's leading Democrat Herbert Kohl is a tribute to the abilities of WorldCom, AOL and Time Warner.

But even the most jaded cynic in the competition directorate-general, the Federal Trade Commission or the US justice department's anti-trust division will tell you that the three key agencies work hand-in-glove on transatlantic merger and cartel cases these days.

Outgoing US Assistant Attorney General Joel Klein, the man whose anti-trust department humbled the mighty Microsoft, said after recent bilateral talks with Union competition officials that the two sides now had a "seamless working relationship on areas of shared interests".

And this is the key: shared interests. US and EU law may work differently when it comes to merger-vetting and trust-busting - for example, the Microsoft case required an application to the federal courts, unlike procedures in the Union - but the world's two biggest single markets now share a common approach towards protecting them.

It was not always the case. Veteran EU competition officials blush in remembrance of erstwhile Commissioner Etienne Davignon enforcing an officially sanctioned steel cartel. Even as recently as 1996, some in Washington suspected (wrongly, as they now admit) that the Union was blocking a link-up between aerospace giants McDonnell Douglas and Boeing as a way of defending Airbus Industrie.

Today, neither side is free of political interference. The Commission's competition department has faced enormous pressure over book-pricing, cross-subsidies for post offices and state banks and, even in the early days of the ten-year-old merger regulation, over a straightforward aerospace merger involving French champion Aerospatiale.

Klein, the FTC and the Federal Communications Commission have felt the heat from the White House and Capitol Hill over the Microsoft case, and George W. Bush advocated going easy on the Seattle software maker in the run-up to the presidential election - as well as the mergers of WorldCom/Sprint and AOL/Time Warner.

But they resist such pressures and usually win, because both the US and the EU believe that market economies are best served by eschewing industrial policy and that dominant forces stifle innovation, drive up prices and send inaccurate signals to market players.

Since last autumn, they have formed a working committee including senior officials from all the authorities to study their joint approach to transnational mergers. They have been looking into coordinated timing of inquiries, ensuring parties consent to pooling confidential information, agreed remedies and whether joint enforcement would have a greater effect on market sentiment.

But these formal arrangements are the tip of the iceberg, according to FTC Chairman Robert Pitofsky. "Our people and people in Brussels are on the phone virtually every day, talking to each other, coordinating approaches, exchanging views," he said after the last EU-US competition summit.

Where they do not agree is on how to extend this approach throughout the World Trade Organisation during the next round of multilateral negotiations. The Commission is pushing for this to be included on the agenda, but the Americans think such an approach is "premature" and risks over-reaching.

Article forms part of a survey on trade.