On 14 October 2011, the Competition Directorate-General of the European Commission (DG COMP), the US Federal Trade Commission and the US Antitrust Division of the Department of Justice (US agencies) adopted a revised version of the 2002 Best Practices on Merger Cooperation (Best Practices). The Best Practices establish an advisory framework for inter-agency cooperation in parallel merger investigations. They are intended to promote fully-informed decision-making, minimize the risk of divergent outcomes, enhance the efficiency of investigations, reduce burdens on merging parties and third parties, and increase the overall transparency of the merger review process.
Communication between reviewing agencies. Where substantial cooperation may be beneficial, the agencies should seek to agree on a tentative timetable for regular inter-agency consultations. Such consultations will be particularly useful at key stages of the investigation, such as: (i) in US investigations, before the date the agency closes an investigation without taking action, before it issues a second request, and before the relevant DOJ section/FTC division makes its case recommendation to senior management; (ii) in EU investigations, no later than three weeks after a Phase I investigation has been opened, before the opening of a Phase II investigation, before the closing of a Phase II investigation, and before issuing a Statement of Objections; and (iii) in both US and EU investigations, at the commencement of remedies negotiations with the merging parties, and prior to a final decision to seek to prohibit a merger.
Coordination on timing. The Best Practices encourage fluent bilateral exchange of information about important developments related to timing during the course of their investigations. The parties can facilitate coordination on timing by submitting parallel filings in the United States and the European Union.
Coordination on collection and evaluation of evidence. In difficult cases, inter-agency coordination may include discussing, subject to confidentiality obligations, the agencies’ respective analyses on market definitions, assessments of competitive effects and efficiencies, economic theories and theories of competitive harm, remedies, and relevant past investigations. The Best Practices acknowledge that waivers of confidentiality are common in cases involving cooperation between DG COMP and the US agencies, and that these waivers enable more complete communication between the reviewing agencies and the merging parties regarding relevant evidence. However, recognizing the rules governing legal professional privilege differ between the United States and the European Union, the Best Practices provide that the agencies will accept waivers provided by the parties to DG COMP that exclude from their scope evidence that is properly identified by the parties as, and qualifies for, in-house attorney-client privilege under US law.
Remedies and settlements. Inter-agency coordination is encouraged in order to avoid imposing inconsistent or conflicting remedies. The agencies should inform each other of any discussions or other developments with respect to remedies. Early coordination is seen as particularly relevant where remedies include an up-front buyer and where DG COMP is considering remedies in Phase I investigations. Cooperation may also enable the design of a single remedy package which addresses the concerns of both agencies.