U.S. and Europe: A Study in Contrasts
The recently issued European Commission's "Draft Best Practices on the Conduct of EC Merger Control Proceedings," illustrates how merger review in the EC is conducted with an expectation of early and substantive contacts between the parties and the antitrust authorities. This is different from the U.S. where "file and pray" is still the predominant approach. Here are a few of the highlights from the Draft:
A first pre-notification meeting should preferably be held at least one or two weeks before the expected date of notification, if the transaction is potentially competitively sensitive.If there are clearly more serious issues this time frame should be expanded and could entail having several pre-notification meetings.
Submission of a "substantive briefing memorandum" (i.e., a white paper) or a draft Form CO, addressing the relevant markets, should be submitted at least three working days before the initial meeting.
During the course of the investigation the parties will be "systematically" offered the ability to attend "State-of-Play" meetings with staff at "decisive points" in the procedure.Also, if all involved parties agree, staff may set up a "triangular meeting" in which complainants and the parties discuss their views in a single forum.
If you have questions regarding this topic or other antitrust and competition law matters contact John F. Young (703) 456-8030 or Francis M. Fryscak (650) 843-5338.