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PRINT THIS PAGE Transatlantic merger control: The same destination but by different routes06/09/2006. Source: Freshfields Bruckhaus Deringer.
The convergence of EU and US merger enforcement policy in recent years has given rise to a new set of strategic considerations for parties embarking on transatlantic transactions, says Freshfields Bruckhaus Deringer. It is now clearly imperative that merging parties co-ordinate their legal strategy across jurisdictions very carefully indeed, taking into account the greater legal accord and increased communication between competition agencies in the US and EU. The following articles describe a spectrum of practical considerations that parties must address when dealing with EU and US regulators in the context of a transatlantic merger investigation and negotiating potential remedies.
Extensive co-operation and co-ordination between EU and US merger review agencies is now standard procedure in transatlantic merger investigations. This interaction between the EU and US regulators goes well beyond formal co-operation agreements. Regulators often co-operate through the exchange of information, discussions among staff, joint interviews of relevant parties, exchange of regulatory submissions, and meetings or other informal contacts.
There also is a recognition by regulators on both sides of the Atlantic that their respective remedy agreements should not aggravate competitive concerns or conflict with potential remedy agreements being negotiated by their counterpart regulators. Although increased convergence and co-operation between the EU and US with respect to merger enforcement is likely to continue, significant procedural differences between the regimes remain.
Among the most prominent of these differences are:
(1) the formal role of third-party complainants in the EU merger review process, including the right to challenge a clearance decision by the European Commission such as the well known challenge to the Sony/BMG music industry merger; (2) the expansive document disclosure obligations in the US and the greater emphasis that is placed on the merging parties’ internal documents when evaluating the likely competitive effects of a proposed transaction; and (3) the regulators’ approach to remedy negotiations, especially with respect to the more regular use in the US of an ‘upfront buyer’ for divested assets.
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These articles were first published in Getting the Deal Through: the international regulation of mergers and joint ventures 2006 published by Global Competition Review and Freshfields Bruckhaus Deringer.
Freshfields Bruckhaus Deringer is a leading law firm for European private equity and venture capital. Our international private equity group provides our clients with a combination of the local insight of lawyers in our network and money-centre know-how, delivered by fully integrated international teams. We specialise in and are well known for innovative and challenging transactions. For more information about the firm please visit http://www.freshfields.com/sector/privateequity
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