Gaps and bridges: transatlantic cooperation Bevin MB Newman and - - PDF document

Antitrust enforcement agencies in the United States and the Euro- pean Union enjoy the strongest bilateral relationship in the compe- tition law arena today. This relationship is in many ways a model for cooperation, and regulators on both sides of the Atlantic Ocean take seriously their collective leadership of the expanding commu- nity of credible antitrust regimes throughout the world. Effective for- mal agreements are in place between the two jurisdictions, but these agreements do not define the close collaboration among competition law officials. Rather, what makes the relationship effective is the “quiet and business-like cooperation” between the European Com- petition Directorate and its counterpart agencies in the United States—the Federal Trade Commission and the Department of Jus- tice Antitrust Division.1 As the new chairman of the United States Federal Trade Commission recently noted, “on the remarkable num- ber of reforms that the EU has undertaken … we have provided input when requested to do so, and this may not mean necessarily taking ultimate positions on what is good or bad, but it may mean just talk- ing things through and relaying our own experiences.”2 There are practical limits to the collegial workings of transatlantic coopera- tion, however, and the US and EU antitrust authorities face new chal- lenges to their increasingly common competition policy goals.

The legal framework for US–EU cooperation

The United States and the European Communities have entered into two agreements controlling cooperation on antitrust matters in which the governments’ interests overlap. The first agreement, entered into in 1991, effected a mutual obligation to notify antitrust matters to the extent that these cases concern the important interests

• f the other authority, and to exchange information on general mat-

ters relating to the implementation of competition rules.3 The 1991 Agreement incorporates the traditional concept of comity—each party agreed to take into account the important interests of the other in its competition enforcement actions. The 1991 Agreement also contains a ‘positive comity’ procedure under which either party may request the other to enforce its competition laws to address anti-com- petitive conduct in its territory that affects the important interests of the requesting party. The 1991 Agreement contemplates regular con- sultation on broad competition policy matters and enforcement activ-

• ities. The US and European Communities signed a second antitrust

cooperation agreement in 1998.4 The 1998 Agreement, which does not apply to merger reviews, clarifies how and when positive comity should be invoked. In 2002, the antitrust enforcement authorities in the EU and US jointly issued and adopted a protocol for reviewing mergers subject to review in both jurisdictions. These merger ‘Best Practices’ set out a structured basis for cooperative merger control, and encouraged merging parties to avail themselves of opportunities for coordinated review by facilitating parallel timing in multiple jurisdictions and information sharing between investigating agencies.5 The protocols

EU-US COOPERATION 26 The European Antitrust Review 2005

also designated appropriate points in the course of a merger investi- gation when it is appropriate and helpful for enforcement agency

• fficials to confer at a high level.6

Most recently, the US and the European Communities entered an Agreement on Mutual Legal Assistance.7 This agreement affects cooperation between the United States and the various Member States, rather than with the European antitrust institutions them-

• selves. Furthermore, the agreement applies only to criminal matters

and so will not affect antitrust cooperation, as violations of articles 81 and 82 of the EC Treaty are not criminal offences.

Why cooperate and what has cooperation accomplished? Effective cartel enforcement

US and EU antitrust enforcement authorities remain staunchly com- mitted to cooperating in the detection and punishment of interna- tional cartel activities—called variously by enforcers on both sides

• f the Atlantic the “supreme evil of antitrust”8 and the “scourge of

the economy”.9 Detection of highly lucrative cartel activity remains the unique charge of government enforcement, and cooperation among competition authorities is vital to this end. Cooperation and convergence in cartel enforcement provide powerful incentives for participants to avail themselves of effective amnesty programmes and to expose illegal activity in all jurisdictions where they have expo- sure. The most profound boost to cooperation in cartel enforcement resulted from collaboration between US and EU officials on the con- vergence of the two jurisdictions’ corporate amnesty programmes. Based in part on shared insights and experiences with US antitrust authorities in fighting the increasing ‘internationalisation’ of cartel activity, the European Commission revised its amnesty programme in 2002 to provide more transparency for applicants and less dis- cretion for enforcers in administering the programme.10 The Com- mission’s revised amnesty programme now substantially mirrors the US Department of Justice Corporate Leniency Policy.11 According to US antitrust officials, the Commission’s revised pro- gramme “has led to a surge in parallel amnesty applications to both the Commission and the Division.”12 Similarly, the level of coopera- tion has swelled as a result of the revised programme. The US and European authorities, often in conjunction with other enforcement agencies around the globe, have conducted near simultaneous exe- cution of search warrants and other inspections. In 2003, the US and the EU conducted a multilateral investigation with antitrust author- ities in Japan and Canada regarding alleged cartel activities in the plastics additives industry.13 In May 2004, the US and the EU made known their joint investigations of alleged price fixing among lead- ing European paper and pulp manufacturers, which authorities in Europe based on the confession of a participant in the alleged cartel activities.14

Gaps and bridges: transatlantic cooperation

Bevin MB Newman and Marta Delgado Echevarría* Jones Day

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In spite of the remarkable level of coordination that antitrust enforcers in the US and the EU have achieved in their cartel enforce- ment efforts, practical impediments to cooperation remain. Antitrust authorities are more limited in their willingness and ability to share information in this arena than in the merger control context, due pri- marily to local laws prohibiting the sharing of information obtained in the course of investigations. The US and the EU both maintain policies of not disclosing an amnesty applicant’s identity, or any infor- mation obtained from the applicant, to foreign authorities without the applicant’s consent.15 Policy convergence has begun to break down these barriers as well, however, and information sharing to the extent it is permitted happens routinely. In fact, bolstered by the cer- tainty of receiving leniency in multiple jurisdictions, amnesty appli- cants recently have waived confidentiality protections in the context

• f transatlantic investigations, permitting the authorities to share

information to the benefit of effective law enforcement.

Effective merger control

Coordination between antitrust authorities in the US and the EU pre- dates the formal agreements on antitrust cooperation between the two governments and continues to grow, in many ways outpacing the agreements, in both practical and policy dimensions.16 Since the agen- cies jointly issued their Best Practices On Cooperation In Merger Investigations in 2002, antitrust enforcement authorities in the US and the EU have solidified their protocols and officials characterise their collaborations pursuant to these protocols as “frequent and intense”.17 One recent dramatic example of the level of coordination achieved between the US and EU is the GE/Instrumentarium merger involving medical monitoring devices. The US Department of Justice entered a consent agreement requiring the merging parties to divest certain businesses. In its consent agreement, the US Department of Justice incorporated the commitments that the merging parties had entered into with the European Commission in 2003, expressly com- mitted to facilitate the appointment of a trustee acceptable to the European Commission to effect the required divestiture, and pledged to withhold its approval of a buyer for those assets if the Commis- sion did not concur.18 Similarly, the European Commission collabo- rated closely with the Federal Trade Commission on merger remedies in the Pfizer–Pharmacia merger and others in 2003.19 Collaboration regularly occurs not only on specific merger cases, but also on the policy front where the agencies express shared goals

• f implementing economically sound and transparent policies, as

well as consistent (or at least not incongruous) merger remedies. Most important to fruitful collaboration between US and EU antitrust regulators is the new European Merger Regulation, which entered into force on 1 May 2004 and the Commission’s Guidelines describing the analytical approach used to assess the likely compet- itive effect of horizontal mergers.20 Under the Guidelines, mergers and acquisitions will be only challenged to the extent that they enhance the market power of the companies in a manner which is likely to have adverse consequences for consumers, notably in the form of higher prices, poorer quality products, or reduced choice.21 The new legislation and guidance resonates with the US agencies’ Horizontal Merger Guidelines, focusing on the competitive effects and potential efficiencies of mergers under review without regard to whether the merger will create or strengthen a dominant position.22 “Put simply, the EU and US agree on what competition policy should be all about. We share a common fundamental vision of the role and limitations of public intervention. We both agree that the ultimate purpose of our respective intervention in the marketplace should be to ensure that the consumer is not harmed.”23 US antitrust officials have lauded their European counterparts’ efforts to reconcile diver- gent approaches to merger control. Similarly, European regulators have heralded changes in US enforcement policy aimed at facilitat-

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ing convergence and increasing the transparency of its merger review process—efforts that include increasingly frequent statements by US antitrust agencies at the closing of merger investigations detailing their reasons for not challenging a particular merger.24

Principled intellectual property law reform

The success of merger collaborations has generated collaborative pol- icy initiatives in the civil non-merger arena as well. Over the past year, the US and EU have coordinated through an Intellectual Prop- erty Working Group focusing on patent pooling and other intersec- tions of intellectual property law and competition law. The European Commission consulted its US counterparts prior to adopting the new Technology Transfer Regulation and Guidelines, which embrace an effects-based model and move the EU significantly toward further convergence with the US in the antitrust analysis of intellectual prop- erty licensing arrangements.25 During 2003, antitrust officials held discussions on multilateral licensing and standard setting organisa-

• tions. Nonetheless, the area of intellectual property law has contin-

ued potential for divergence between the US and the EU. Significant gaps remain in the areas of compulsory licensing and the general understanding of the underlying economic theories of competitive harm applied to licensing restrictions.26

The bigger picture—guiding principles for the developing world

As the international community of antitrust authorities has swelled in recent years, the differences between the US and EU in competition law enforcement have diminished in importance. The shared goals of encouraging a truly global network of competition authorities to pre- serve competition in an increasingly global economy in many ways

• vershadow the procedural and the substantive differences in US and

EU competition law. According to Commissioner Monti, “the EU and US carry comparable global weight in the area of competition law enforcement, especially in the area of merger control... There is much to be gained from the EU and US focusing on finding common policy ground in relation to issues of common global importance. Antitrust policy, and merger control policy in particular, is a shining example of that—and I believe that the benefits are being felt by both of our economies in this ever more interdependent world.”27 Both the US and the EU have long subscribed to the OECD recommendations con- cerning cooperation between member countries on anti-competitive practices affecting international trade.28 More recently, antitrust offi- cials both in the US and in Europe have committed significant resources to the International Competition Network (ICN) and its mission of “facilitat[ing] the establishment of credible competition authorities in developing and transition countries”.29

Remaining obstacles Substantive divergence

Despite the success, cooperation in competition matters still encoun- ters several obstacles. In spite of recent progress, there remains sig- nificant divergence in substantive laws, including in matters such as abuse of dominance, the approach to merger efficiencies and reme- dies, and the licensing of intellectual property. In particular, the fail- ure of the merger between General Electric and Honeywell, despite the cooperative efforts made by both the US and the EU in its assess- ment, led to a period of disagreement between the authorities on both sides of the Atlantic. Although the case was exceptional (coop- eration across the Atlantic has indeed been moving along in a satis- factory manner), conflicting messages were proliferated, mainly with regard to the aims of merger control and the very values to be pro- tected by competition policy. The European Commission’s new inves- tigation into the proposed joint acquisition of ContentGuard by Microsoft and Time Warner (when no antitrust review of the deal

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has been required in the US) has caused speculation about another discordant result.30 Assistant Attorney General Hewitt Pate recently suggested that the US espouses a more Darwinian view of the com- petitive process, and that the EU places greater emphasis on requir- ing that dominant firms limit themselves to gentlemanly competition.31 Commissioner Monti replied that the EU is aiming at safeguarding the conditions of Darwinian competition provided it is Darwinian competition on merit; if competition is Darwinian but through means other than merit then competition authorities should be draconian.32

Procedural disparities

Disparate procedural laws also can lead to significant divergence and can stifle effective cooperation. Take for instance the timing of merger review: parties to an international merger sometimes pre- fer to file before the European Commission because of the greater transparency of deadlines. In spite of encouragement by the author- ities to facilitate parallel timing of merger review, merging parties

• ften wait until they have a green light in the EU before triggering

the review process in the US The possibility of facing criminal penalties for cartel activities in the US when the same conduct con- stitutes administrative infringement in the EU similarly impedes coordination of competition law enforcement, even when the goals

• f the US and the EU are the same. Disparate venues also produce
• divergence. In the US, antitrust enforcement, particularly merger

control, is done through a judicial system where the agencies may settle with the defendant and have the settlement approved by the

• court. By contrast, in the EU’s administratively based system, until

the reform in May 2004, it was the exclusive responsibility of the Commission to negotiate and decide its cases.33 This divergence may lead, and has indeed led, to very different outcomes (ie, the Microsoft case).34 In addition to these specific divergences, other more general issues greatly affect the outcome of cooperation among the agencies in transatlantic enforcement of competition laws. Of these, the most important is confidentiality. As it has been said, if you can’t get the facts then you don’t have a case.35 Effective cooperation rests on the agencies’ ability to discuss remedies in specific cases, to exchange specific documents disclosing anti-competitive behaviour, and to dis- close enforcement decisions when such decisions are not yet public. However, local provisions very often prevent the agencies from exchanging information classified as a business secret, or informa- tion that has been obtained from a leniency applicant or from one

• f the parties in the course of an antitrust investigation. In the absence
• f a formal legal mechanism for sharing these types of information,

the agencies may exchange this information only so far as the pri- vate parties agree to it, usually by means of a waiver. While com- munications are now common among competition officials at every level, the European Commission in particular follows very strictly the confidentiality requirements of Community law—telephone con- tact with the US agencies is normally conducted in the presence of at least two officials from the Competition Directorate so that they can monitor one another and ensure that the confidentiality rules are fully respected.36 With no legal reform in sight, the agencies strive to obtain waivers from private parties, but frequently are hindered by the spec- tre of exposure to private civil damages. Documents given by the applicant to the authorities have in some cases been used by plain- tiffs in private civil litigation before US or Member State courts, a fact that dissuades potential applicants from exposing illegal activ- ity under the leniency programmes.37 So far, the agencies have achieved little success in impeding the use of such information in

• ther actions,38 which has resulted in the European Commission

accepting oral applications.39

EU-US COOPERATION 28 The European Antitrust Review 2005 The challenge of decentralisation

The European Union has embarked on a decentralisation process, which will shift competition cases to 25 different national authori- ties and away from the central European antitrust institutions. The decentralisation of EU competition law is likely to be a new source

• f divergence in competition matters. Existing agreements between

the US and each Member State will be of increasing importance, since the 1991 and 1998 cooperation agreements between the EU and the US are not binding on national jurisdictions. For example, decen- tralisation may bring new problems in the area of international car- tel enforcement, as only 14 out of 25 Member States have a leniency

• policy. The Agreement on Mutual Legal Assistance between the

European Union and the United States may come to play an impor- tant role in the success of cooperation in competition matters, but will only be of immediate help to those jurisdictions in which the conduct constitutes a criminal violation.40 In this context, potential applicants for amnesty face increased exposure in the context of private litigation—with the increase of private actions for damages, the value of business information for plaintiffs will undoubtedly rise. So far, Commissioner Monti has declared that one of the goals of the Competition Directorate in the newly decentralised system will be to promote private litiga- tion for damages. The need to take into account 25 different legal systems covering the protection of confidential information will add to these difficulties.

Prospects for improved cooperation—toward a second generation agreement?

In spite of the successes, many believe that the US and the EU have reached the limit of how effectively they can use the existing legal framework to foster convergence and cooperation.41 Some have claimed that the only way to enhance effective bilateral cooperation in the future is through ‘second generation agreements’ by which fur- ther information, antitrust evidence and assistance could be obtained from foreign antitrust authorities. In this regard, the International Antitrust Enforcement Assistance Act ‘IAEAA’ enables the Attorney General of the US and the Federal Trade Commission to sign assis- tance agreements with third countries. The only such agreement signed to date is between the US and Australia.42 Although European authorities initially rejected such an agreement, some have suggested recently that it is time to take such a step between the EU and the US.43 In fact, the European Commission’s most recent Report on Competition Policy reflects its intention to explore the possibility of initiating negotiations on a second generation agreement to allow the exchange of legally protected information between European antitrust authorities and the US.44 Furthermore, during the EU–US summit in Ireland in June 2004, enforcement authorities expressed a clear commitment to “pursue, and build on, bilateral cooperation in the immediate term based on the EC–US Agreement of 1991. We will examine the options for deepening cooperation on competition matters, including the possibility of a further agreement.”45 More specific input is expected during the EU–US meeting on antitrust, which will be held in the second half of 2004. The extent to which political issues (such as the designation of Neelie Kroes as Competi- tion Commissioner, or the outcome of the 2004 presidential election in the US) will affect the advances to take place in such meeting remain to be seen.

Conclusion

The most noteworthy action towards convergence that has taken place in the past two years has been the intensive review of sub- stantive and procedural competition law undertaken in the Euro- pean Union. To date, the European Union has a revised leniency policy, a new set of guidelines on horizontal mergers, a new policy

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• n technology transfer agreements, a brand new procedural regula-

tion on articles 81 and 82 of the Treaty, a new substantive test for mergers, and a new economics-based line of analysis (represented by the appointment of a chief competition economist). All these changes are significant steps towards convergence with the US, and their effects will soon be felt. The EU now has many important internal goals to achieve, such as enlargement and the functioning of its own unified and decen- tralised system (including the difficult task of achieving unified and coordinated competition enforcement by all national authorities and judicial instances, through the European Competition Network), plus the revision of the policy on several important issues of sub- stantive law. However, the effort made in the field of national EU coordination and cooperation may help define issues of bilateral cooperation between the US and the EU and overcome difficulties, and may even pave the way to extended cooperation through ‘sec-

• nd generation’ agreements.

Notes

* The authors would like to thank Marie C Strait and Olivia Moratilla for their assistance in preparing this chapter. 1 Mario Monti: ‘Convergence in EU–US antitrust policy regarding mergers and acquisitions: an EU perspective’ at UCLA Law First Annual Inst on US and EU Antitrust Aspects of Mergers and Acquisitions, Los Angeles (Feb 28, 2004) available at http://europa.eu.int/rapid/ pressReleasesAction. do?reference=SPEECH/04/107&format=HTML&aged=0&language=EN &guiLanguage=enMonti. 2 Deborah Platt Majoras, remarks at the British Institute of International Comparative Law (July 2004). 3 Agreement between the government of the United States of America and the Commission of the European Communities regarding the application

• f their competition laws, Official Journal L 95 (27 Apr 1995), reprinted

in 4 Trade Reg Rep (CCH) ¶ 13,504. 4 Agreement between the European Communities and the government of

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the United States of America on the application of positive comity principles in the enforcement of their competition laws, Official Journal L 173 (June 18, 1998), reprinted in 4 Trade Reg Rep (CCH) ¶ 13,504A. 5 US–EU Merger Working Group, ‘Best Practices On Cooperation In Merger Investigations’ (30 Oct 2002) available at http://europa.eu.int/ comm/competition/mergers/others/eu_us.pdf. 6 Id. 7 Agreement on Mutual Legal Assistance US–EU, 2003 Official Journal (L 181) 34 (19/07/2003). 8 R Hewitt Pate, ‘Antitrust in a Transatlantic Context—from the Cicada’s Perspective,’ Address at the Antitrust in a Transatlantic Context Conference (7 June 2004), available at http://www.usdoj.gov/ atr/public/speeches/203973.htm. (citing Verizon Communications, Inc v Trinko, LLP, 124 S C. 872 (2004)). 9 Commission’s XXXIIIrd Report on Competition Policy, SEC (2004) 658 final (4 June 2004), available at http://www.europa.eu.int/ comm/ competition/annual_reports/2003/draft_en.pdf. 10 Commission Notice on Immunity from Fines and Reduction of Fines in Cartel Cases, 2002 Official Journal (C 45) 3 (19/02/2002). 11 United States Dept of Justice, Antitrust Div, Corporate Leniency Policy, reprinted in 4 Trade Reg Rep (CCH) ¶ 13,113 (10 Aug, 1993). 12 Pate, ‘Antitrust in a Transatlantic Context,’ supra. 13 ‘Price Fixing: JFTC Cracks Down on Chemical Cartel in First Cooperative Probe With America, EU,’ Antitrust & Trade Reg Daily (BNA) (Dec 15, 2003); Scott D Hammond, Dir Criminal Enforcement US Dept of Justice Antitrust Div, ‘Beating Cartels at Their Own Game—Sharing Information in the Fight Against Cartels,’ presentation to the Inaugural Symposium

• n Competition Policy, Competition Policy Research Center Fair Trade

Commn of Japan (Nov 20, 2003), available at http://www.usdoj.gov/ atr/public/speeches/201614.htm. 14 ‘Price Fixing: EC Raids European Firms Suspected of Cartel Action In Paper-Pulp Industry,’ Antitrust & Trade Reg Daily (BNA) (26 May 2004). 15 James M Griffin, Deputy Asst Attorney General US Dept of Justice Antitrust Div, ‘The Modern Leniency Program After Ten Years: A Summary Overview of the Antitrust Division’s Criminal Enforcement Program’,

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CONTACTS ATLANTA GEORGE T MANNING TEL: +1 404 521 3939 BRUSSELS BERNARD E AMORY TEL: +32 2 645 14 11 CHICAGO THOMAS F GARDNER TEL: +1 312 782 3939 CLEVELAND THOMAS DEMITRACK TEL: +1 216 586 3939 DALLAS JOSEPH L MCENTEE THOMAS R JACKSON TEL: +1 214 220 3939 FRANKFURT DR CARSTEN T GROMOTKE TEL: +49 69 9726 3939 LONDON GREGORY P OLSEN TEL: +44 20 7039 5959 LOS ANGELES JEFFREY A LEVEE TEL: +1 213 489 3939 MADRID JOSÉ MARÍA JIMÉNEZ-LAIGLESIA JUAN JIMENEZ-LAIGLESIA TEL: +34 91 520 39 39 MILAN STEFANO MACCHI DI CELLERE TEL: +39 02 7645 4001 MUNICH DR HANS-WERNER MORITZ TEL: +49 89 20 60 42 200 PARIS ERIC MORGAN DE RIVERY TEL: +33 1 56 59 39 39 SAN FRANCISCO ROBERT A MITTELSTAEDT TEL: +1 415 626 3939 SHANGHAI PETER J WANG TEL: +86 21 2201 8000 TOKYO SHINYA WATANABE TEL: +81 3 3433 3939 WASHINGTON JOE SIMS PHILLIP A PROGER TEL: +1 202 879 3939 Tracing its origins to 1893, today Jones Day encompasses more than 2,200 lawyers resident in 30 locations and ranks among the world's largest and most geographically diverse law firms. The firm acts as principal outside counsel to, or provides significant legal representation for, more than half of the Fortune 500 compa- nies, as well as to a wide variety of other entities, including privately held companies, financial institutions, investment firms, health care providers, retail chains, foundations, educational institutions, and individuals. Jones Day's Antitrust & Competition Law practice consists of approx- imately 100 counselors and litigators, located in 16 offices in the United States, Europe and Asia. We are recognized in professional publications and rankings as one of the leading antitrust/competition practices in the world. We provide antitrust and competition law ser- vices with respect to mergers and acquisitions, government criminal and civil investigations, antitrust litigation, antitrust/intellectual prop- erty issues, and the full range of counseling subjects (including dis- tribution, electronic ventures of various kinds, pricing, trade associations, licensing, and standard-setting). In Europe and Asia, Jones Day has nearly 40 antitrust specialists in Brussels, Frankfurt, London, Madrid, Milan, Munich, Paris, Shanghai and Tokyo. We have significant experience with merger notifications before the EC and national authorities, cartel investigations, compe- tition issues involving the telecommunications industry, state aids, dominant firm issues, and the full range of counseling issues. We practice before the Court of First Instance and the Court of Justice of the EC, and national and local courts in most countries where we have offices. 07 EU-US sjc 26-30 8/9/04 9:08 am Page 29

EU-US COOPERATION 30 The European Antitrust Review 2005

presentation to the American Bar Ass’n Section of Antitrust Law Annual Meeting (12 Aug 2003), available at http://www.usdoj.gov/ atr/public/speeches/201477.htm. 16 For a discussion of the history of US–EU coordination on merger policy, see American Bar Assn Section of Antitrust Law, International Antitrust Cooperation Handbook p 141–55 (2004). 17 XXXIIIrd Report on Competition Policy, SEC (2004) 658 final ¶ 681. 18 United States v Gen Elec Co, Civ No. 03-1923 (DDC) (final judgment filed 23 Feb 2004). 19 XXXIIIrd Report on Competition Policy, ¶ 682. 20 Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the EC Merger Regulation), Official Journal (L 24) 29/01/2004, at 1-22; Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings, Official Journal (C 31) 05/02/2004, at 5-18. 21 ‘Mergers and Aquisitions: EU Adopts Merger Control Guidelines to Complement Improvements in Regulation,’ Antitrust & Trade Reg Daily (BNA) (17 Dec 2003). 22 XXXIIIrd Report on Competition Policy, ¶ 218. 23 Mario Monti, ‘Convergence in EU-US Antitrust Policy Regarding Mergers and Acquisitions: An EU Perspective,’ supra (28 Feb 2004). 24 Id. 25 Commission Regulation (EC) No. 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements. Official Journal (L 123) 27/04/2004, at 11-17; Commission Notice, Guidelines on the Application of Article 81 of the EC Treaty to Technology Transfer Agreements, Official Journal (C 101) 27/04/2004, at 2-42, available at http://europa.eu.int/eur- /ex/en/search/search_oj.html. 26 Makan Delrahim, Deputy Asst Attorney General, Antitrust Division, US Dept of Justice, ‘US and EU Approaches to the Antitrust Analysis of Intellectual Property Licensing: Observations from the Enforcement Perspective,’ presentation to the American Bar Assn Section of Antitrust Law Annual Meeting (1 April 2004), available at http://www.usdoj.gov /atr/public/speeches/203228.htm. 27 Monti, ‘Convergence in EU-US Antitrust Policy,’ supra. 28 OECD Council Revised Recommendation C (95) 130/Final Concerning Cooperation Between Member Countries on Anti-competitive Practices Affecting International Trade (21 Sept 1995), reprinted in 35 ILM 1313 (1996); OECD Council Recommendation C (98) 35/Final Concerning Effective Action Against Hard Core Cartels (13 May 1998), available at http://www.usdoj.gov.atr/public/international/docs/hard_core.htm. 29 XXXIIIrd Report on Competition Policy ¶ 706. 30 Paul Mellor, ‘Europe Opens Another Microsoft Inquiry’, New York Times, 26 Aug 2004. 31 Using Judge Posner’s original expression, ‘Antitrust in a Transatlantic Context’, Brussels, Belgium, 7 June 2004. 32 Comments by Mario Monti to the speech given by R Hewitt Pate, Brussels, 7 June 2004. Speech available at http://www.europa.eu.int/ comm/competition/speeches/index2004.html. 33 As of May 2004, national judges and competition authorities may enforce European competition law under certain conditions and circumstances. 34 While the DOJ, nine states and Microsoft reached a settlement after long and persistent encouragement by the district courts, which required the appointment of two different mediators, (Judge Posner and Eric D Green), in the EU, the European Commission and Microsoft were unable to reach a settlement, and the case ended with the imposition of a fine and conduct remedies. 35 Anne K Bingaman, ‘International Cooperation and the Future of US Antitrust Enforcement,’ presentation to American Law Institute Annual Meeting (16 May 1996), available at http://www.usdoj.gov/atr/ public/speeches/96-05-16.htm. 36 See Commission Report to the Council and the European Parliament on the application of the Agreement between the European Communities and the government of the United States of America regarding the application of their competition laws, Com(96)479 final, 8 Oct 1996. 37 Phillip Lowe, DG Comp Director, has pointed this out with regard to EU cases in ‘What’s the future for cartel enforcement’, Brussels, 11 Feb 2003. 38 The problem has appeared quite recently with US courts’ motions to compel the defendants to submit the written corporate statement that they had provided the European Commission for the purpose of their leniency application; cases like Vitamins, Choline Chloride, and Methionine are the most recent examples of this strategy. Although the Commission filed briefs in every case, it was only in the last case that the court agreed to not grant a motion to compel. In the other cases, the motions were granted. 2003/2/EC: Commission Decision of 21 Nov 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512— Vitamins), Official Journal (L 006), 10/01/2003; 003/674/EC: Commission decision 2 Jul 2002 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case C.37.519—Methionine), Official Journal (L 255) 8/10/03. 39 Oliver Guersent, Head of Unit, Competition Directorate, EU Commission, at Fordham Antitrust, International Cartels Roundtable, Oct 2003. 40 Official Journal (L 181) 19/07/2003 at 0034-42. 41 Oliver Guersent, supra. 42 Agreement for Mutual Antitrust Enforcement Assistance between the US and Australia, 27 Apr 1999. 43 The US delegation presented the IAEAA to the European Commission in

• 1996. The Commission decided then that it was first necessary to

establish working groups in order to try to approximate their regulations and principles and thus increase bilateral cooperation. Some time later, the report of the team formed by the former Competition Commissioner, Karel Van Miert suggested that the US–EU Agreement should be broadened to allow the exchange of confidential information and use of compulsory process on behalf of the other party, along the lines authorised by the IAEAA. Commissioner Monti has suggested so several

• times. And Oliver Guersent (Head of Unit, Competition Directorate) has

agreed that although there is no question of that at the moment, sooner

• r later the US and the EU will have to think about that (International

Cartel Roundtable, Fordham, Oct 2003). 44 XXXIIIrd Report on Competition Policy, ¶ 732. 45 An overview of the EU–US summit can be found at http://www.europa. eu.int/comm/externalrelations/us/intro/index.htm. 07 EU-US sjc 26-30 8/9/04 9:08 am Page 30