October was a busy month for European and U.S. antitrust enforcers, who revised “best practices” aimed at enhancing the efficiency of antitrust investigations on both sides of the Atlantic.
First, on October 14, 2011, the U.S. Department of Justice, the Federal Trade Commission and the European Commission (the “EC”) issued an updated set of “best practices” that they use to coordinate merger reviews under their concurrent jurisdictions. Three days later, the EC announced another set of revised best practices regarding its unilateral review of alleged anticompetitive conduct.
The revised practices regarding merger reviews are the latest development in a joint effort by the U.S. and the EC, started in 1991, “to promote cooperation and coordination and lessen the possibility or impact of differences … in the application of their [respective] competition laws.” In 2002, they jointly issued their first set of best practices on concurrent merger reviews.
The trans-Atlantic antitrust enforcers have now revised those practices, “confirming” the 2002 version and building on the “experience gained” since they were issued.
The most significant enhancement is the emphasis on the role of merging parties in facilitating cooperation. For example, the revised practices encourage parties to authorize the agencies to share information, and to execute confidentiality waivers to enable such sharing.
The practices also advise parties to coordinate the timing of their filings with the various agencies, warning that if a final decision in one jurisdiction is reached before filing has taken place in the other, any possibility of meaningful cooperation between the agencies will have been excluded.
In addition, the practices implore the agencies to do their part to improve coordination. For instance, they advise the agencies to:
• contact one another promptly upon learning of a merger that may require simultaneous review;
• align the timing of their investigations;
• engage in inter-agency consultations, particularly at “key stages” such as before issuing a second request, negotiating remedies, or deciding to prohibit a merger;
• sharing information such as draft discovery requests and their analyses of market definition, competitive effects and other relevant issues; and
• permitting parties to give joint presentations, interviews and document submissions to the agencies.
The revision notes the particular value of cooperating with respect to remedies, and includes an expanded discussion of how coordination can be improved in that regard. For instance, it advises the agencies to “keep one another informed” of remedy discussions, “share draft remedy proposals,” and generally ensure that their remedies “do not impose inconsistent or conflicting obligations.” The revised practices also encourage improvement of coordination with authorities in other nations. For example, they advise parties to inform the U.S. and EU of any actual or anticipated outside review, and they advise the agencies to “seek to cooperate with [such] other authorities….”
Like the revised best practices on merger review, the EC’s recently-revised best practices for unilateral antitrust proceedings also aim to promote efficiency. They follow a 2010 draft and were developed through “public consultation and practical experience.” Significant improvements over the 2010 draft include advising the EC to:
• inform parties of the parameters for potential fines;
• extend “state of play meetings” to cartel cases and complainants in certain circumstances;
• provide enhanced access to “key submissions” such as economic studies; and
• publish rejection of complaints.
The EC has also expanded the role of the independent Hearing Officer, who is responsible for guarding the procedural rights of the parties being reviewed. Among other changes, the Hearing Officer can now resolve issues regarding attorney-client privilege and questions that might force parties to admit to violations.