Brussels, 31/10/2002 (Agence Europe) - The European Commission and the US competition authorities have issued a set of best practices on co-operation in reviewing mergers that require approval on both sides of the Atlantic. The best practices have today been issued by European Competition Commissioner Mario Monti with his US counterparts, Timothy Muris, Chairman of the U.S. Federal Trade Commission and Charles James, US Assistant Attorney-General for Antitrust, with a view to enhancing the good relationship developed over the last decade. The measures result from the deliberations of an EU-US Merger Working Group, bringing together experienced officials from the three agencies, which has in recent months been closely studying how the effectiveness of EU-US cooperation in merger cases might be further improved. Euro-American co-operation has been developing since the entry into force of the EU's Merger Regulation in 1990. That co-operation was put on a firm footing with the conclusion of the EU-US Agreement on the Application of their Competition Laws in 1991. Since then relations have deepened and the partners have collaborated on many cross-border mergers which are scrutinised in both jurisdictions. The Commission has stressed that inter-agency contacts have served "to minimise the risk of divergent outcomes and have under-pinned a process of substantive convergence in their analytical approaches". Commissioner Monti explained that, "The best practices put in place a more structured basis for our co-operation in reviews of individual merger cases that require regulatory clearance on both sides of the Atlantic with a view to minimising the risk of divergent outcomes in the interest of both businesses and consumers".
The code of best practices is divided into five areas: 1) Objectives: the two jurisdictions will, whenever possible, exchange a maximum of information (insofar as they are not confidential) on mergers and the right to request. This co-operation aims to minimize the risk of divergent outcomes, facilitate coherence and compatibility in remedies, enhance the efficiency of their respective investigations, reduce burdens on merging parties and third parties, and increase the overall transparency of the merger review processes; 2) Coordination on Timing: the agencies should endeavour to keep one another apprised of important developments related to the timing of their respective investigations throughout the course of their reviews of merger transactions subject to review by the US and the EU. In order to develop the procedure together, step by step, partners will do their best to provide information on the state of play of their investigations; c) Collection and Evaluation of Evidence. The agencies should provide all necessary information on their progress. For this reason the merger parties must be included in the dialogue: the objective is to demonstrate the advantages to be gained by sharing information. Therefore, the teams in charge of the investigation will have to encourage the parties to abandon confidential practices as much as possible, which create a duplication of work and make deadlines hard to attain; Communication Between the Reviewing Agencies. The reviewing agencies will, via liaison officers or otherwise, contact one other upon learning of a transaction that appears to require review by both the US and EU. Each will be given a particular task to carry out (organisation of meetings, discussion with the merger parties, co-ordination of the investigations etc). Euro-American meetings will also be organised according to specific criteria: Remedies/Settlements. The remedies offered by the merging parties might not always be identical because the effects of a transaction may be different in the US than in the EU. Nevertheless, the reviewing agencies should strive to ensure that the remedies they accept do not impose inconsistent obligations upon the merging parties.