European Union And United States Antitrust Authorities Update Best Practices On Cooperation In Merger Investigations

The Competition Directorate-General of the European Commission (DG Competition) and the Department of Justice (DOJ) and Federal Trade Commission (FTC) in the United States have jointly issued revised Best Practices on Cooperation in Merger Investigations. The revised Best Practices builds upon the experience gained by the agencies in merger investigations since the first Best Practices statement was issued in 2002—and responds to criticism from the business community, which was in need of clear recommendations on how to navigate the processes in these two very different regimes. In particular, the update expands the guidance to cover remedies and settlements. It also makes recommendations on how merging parties can assist the agencies in their review of a merger that has effects in the U.S. and the EU.

Framework for Interagency Cooperation

Communication and Coordination between the Reviewing Agencies

To be clear, not all transactions require coordination. The revised Best Practices deals with those transactions that raise competition issues in both jurisdictions. When a transaction raises such issues, the revised Best Practices encourages early and prompt communications between the EU and U.S. competition authorities. Interagency communication regarding the transaction is even encouraged during the EU pre-notification phase (i.e., when the deal has been initially communicated to DG Competition but before the Form CO has been accepted), thereby taking into account the front-loaded nature of the EU's merger control system.

Where a transaction appears to present significant competition issues in both jurisdictions, the revised Best Practices recommends that the authorities establish a "tentative timetable" for interagency consultations, particularly at key stages of the investigation, namely:

before the relevant U.S. agency either closes an investigation without taking action or issues a second request; no later than three weeks following the initiation of a Phase I investigation in the EU (i.e., upon receipt of the answers to the market test questionnaires when the European Commission starts forming its views on a concentration); before the European Commission opens a Phase II investigation or clears the merger without initiating a Phase II investigation; before the European Commission closes a Phase II investigation without issuing a Statement of Objections or before DG Competition anticipates issuing its Statement of Objections; before the...