Substantial convergence or parallel paths? similarities and differences in the economic analysis of horizontal mergers in U.S. and EU competition law

摘要

Before the GE/Honeywell case, the consensus was that transatlantic merger control displayed remarkable substantive convergence, despite substantial procedural differences. In the aftermath of GE/Honeywell, commentators have emphasized the many significant differences in the way U.S. and European Community (EC) competition authorities assess mergers. The recent debate on the reform of European Union (EU) merger control has further highlighted apparent differences between the analyses carried out in the two jurisdictions. Where is the truth? Is the way EC and U.S. merger control works inherently different? This article attempts an answer to these questions by looking beyond the formal and official positions of the antitrust agencies and by focusing on the practical difference in the assessment of mergers, as experienced by antitrust practitioners who work on mergers reviewed in both jurisdictions. Contrary to what officials of the various agencies would like to convey, it is our opinion that there are many important, and often understated, practical differences in the way mergers are reviewed on the two sides of the Atlantic. Three qualifications are necessary. First, we focus on substantive differences in economic analysis between the two jurisdictions and not on legal and procedural differences. Second, our discussion is centered on the similarities and differences between how mergers are commonly analyzed by the Department of Justice (DOJ) and the Federal Trade Commission (FTC) in the United States and the European Commission in the European Union. However, other agencies also review mergers (such as the Federal Communication Commission and the Department of Defense in the U.S. and national competition authorities in EU member states). These sometimes have different practices from that of the "main" agencies. Finally, the judicial defeats suffered by the European Commission in 2002 and the ensuing reform of the European Merger Regulation (the Regulation) initiated a process of reassessment, refocusing and change in the practice of the European Commission. It is still too early to appreciate the full implications of this process, but it is our opinion that it is facilitating convergence of the practices of the agencies in the two jurisdictions. Nevertheless, we believe that the traditional European approach will not change overnight, and that most of the issues highlighted this article sill still be relevant in the future.