International Cooperation in Antitrust Enforcement

The Illinois State Bar Association, International Trade Program

Chicago, Illinois

Date:
By: 
Roscoe B. Starek, III, Former Commissioner

I. INTRODUCTION

I am pleased to have the opportunity to attend your International Trade Program here in my hometown and to speak to you about some current international antitrust topics that are being debated around the world. Before I proceed, I should point out that the following remarks are my own and do not necessarily represent the views of the Federal Trade Commission or of any other Commissioner.

Antitrust is becoming increasingly important to American firms because they are engaging in more and more international transactions. A firm must be carefully attuned not only to the antitrust laws of the United States but also to the competition policies and antitrust enforcement regimes of the other nations in which it operates. That is one reason why the Department of Justice and the FTC last year revised the Antitrust Enforcement Guidelines for International Operations, which provide businesses and their counselors with guidance on how U.S. antitrust law applies to their international activities.(1)

Meanwhile, many other nations are also paying heightened attention to the role of antitrust enforcement in keeping their markets free and efficient. Many of the United States' trading partners have either enacted new antitrust laws or strengthened their old antitrust laws and enforcement programs over the last few years -- a trend that shows no sign of abating. Any firm engaged in international transactions ignores these developments at its peril.

With agreements such as the General Agreement on Tariffs and Trade ("GATT") and the North American Free Trade Agreement ("NAFTA"), nations have made strides toward removing traditional, government-imposed barriers to international trade such as tariffs, import quotas, and domestic product subsidies. These changes will benefit consumers through lower prices and a greater selection of goods and services. And certainly manufacturing firms have the potential to expand their markets to reach consumers they could not reach before.

At the same time, private anticompetitive behavior has come into focus as an appropriate subject for multilateral discussions and, possibly, some type of multilateral agreement on enforcement and rules and procedures. Most people would agree that a multilateral agreement on a comprehensive antitrust code, enforced by the World Trade Organization ("WTO"), is a long way off -- even if it were a desirable goal. As international business transactions come under scrutiny by multiple antitrust authorities, it is in the interests of business and consumers alike that these authorities cooperate with one another, coordinate their enforcement efforts where possible, and strive to achieve consistent results in enforcement. Happily, there is evidence of a willingness among the U.S. and its major trading partners to cooperate, which has resulted in some convergence in the way different nations assess the competitive effects of international business transactions.

II. COOPERATION AND CONVERGENCE IN PRACTICE

The United States has entered into bilateral cooperation agreements with Australia,(2) Canada,(3) Germany,(4) and the European Union.(5) The U.S. also adheres to a "Recommendation" of the Organization for Economic Cooperation and Development ("OECD") on cooperation among OECD members in the enforcement of their antitrust laws.(6) These bilateral agreements and the OECD Recommendation are based on respect for the sovereignty of nations and a commitment to work cooperatively to avoid conflicts of national interest in antitrust enforcement. When conflicts cannot be avoided, those agreements set out procedures to try to resolve them constructively.

Neither sensitivity over sovereignty nor differences in substantive antitrust standards have impeded cooperation among U.S. and foreign antitrust authorities. It is the procedural differences and limits on the sharing of confidential information that can hinder cooperation. Procedural differences among nations include variations in the timing of premerger notifications, in statutory timetables for decisions, and in limits on the sharing of information. Proposals to lift information-sharing limitations can be quite controversial.(7) Nevertheless, in spite of concerns over confidentiality, a number of cases over just the past year offer examples of productive international cooperation.

A. Shell/Montedison(8)

In 1994 a joint venture was announced involving Montedison S.p.A. and the Royal Dutch Shell Group, the world's largest producers of polypropylene, a plastic used in carpet fibers, apparel and industrial fabrics, automotive parts, toys, and a variety of other products. In addition to raising competitive implications at the polypropylene production level, the transaction placed under one roof the world's two leading polypropylene-making technologies, Unipol and Spheripol.

The FTC and the EC both took a global view of this transaction, with their investigative staffs continuously sharing views on market definition, competitive effects, and potential remedies. FTC staff also responded to EC questions about U.S. law on jurisdiction, parent/subsidiary relations, contract rights, and intellectual property rights.

The FTC and the EC reached very similar conclusions as to the relevant product and geographic markets(9) and the transaction's likelihood of eliminating competition between Montedison and Shell in polypropylene production and technology markets, increasing prices of polypropylene technology licenses and catalysts, and reducing innovation in technology. The discussions between FTC and EC staff helped ensure that the Commission achieved an effective antitrust remedy -- primarily a divestiture to Union Carbide (or another approved purchaser) of Shell Oil's polypropylene assets located in the United States.

The case has generated some public discussion, including an interesting colloquy at the 1994 Fordham Corporate Law Institute in New York involving Shell Oil counsel and EC and FTC officials involved in the case.(10) One question was whether the EC and FTC could have "merged" their investigations through the cooperation of the parties and EC and U.S. authorities. A clear conclusion from this discussion was that the parties to a transaction have the means to foster -- or to frustrate -- cooperation through the timing of their notifications and their willingness to waive confidentiality.

B. Pharmaceutical Industry Mergers

Although most recent mergers in the pharmaceutical industry have been subject to review by both the FTC and the EC, geographic market definitions have tended to reflect national requirements for new drug approval. Consequently, most overlaps of concern have also been national in scope.

The EC views each EU Member State as a separate relevant geographic market for pharmaceutical products. Although there has been a European agency for evaluating and approving medicinal products since last year(11) -- and although the EC views pharmaceuticalR&D as a world market -- the EC has not embraced a single European market for the sale of pharmaceutical products. The EC's position stems from differences among Member States' health care systems, their marketing and distribution systems, and their approaches to price regulation.

The FTC's enforcement actions in this industry reflect the view that the U.S. is the relevant geographic market for the sale of drugs, based upon the need for FDA approval to sell drugs in this country. The relevant geographic market for pharmaceutical R&D may be worldwide, but in the later phases of development, the FTC considers the relevant market to be the territory covered by the regulatory authority that will approve a new drug.(12)

1. Glaxo/Wellcome

Glaxo's $15 billion acquisition of Wellcome last year raised antitrust problems in both the U.S. and the EC in the market for acute migraine headache treatments. EC and FTC staff members consulted to identify the product markets of mutual concern, the likely competitive effects, and the best available remedy.

The most effective migraine treatment currently approved for sale in the United States is an injectable drug, Sumatriptan, that is marketed and sold by Glaxo as Imitrex®. Both Glaxo and Wellcome had non-injectable migraine treatments under development.

Although the EC found a Wellcome product in Phase III clinical trials to be a potential competitor of Glaxo's Imitrex, it (13)also found other companies developing potentially competing products and concluded that Glaxo's acquisition of Wellcome would not significantly reduce potential competition in the market for antimigraine products. To allay doubts about the compatibility of the transaction with EC law, Glaxo offered to grant an exclusive license to a third party to develop and market independently either Wellcome's product or the next-generation Glaxo product (also in clinical trials).

Shortly after the EC issued its decision, the FTC announced a consent agreement that required Glaxo to divest the worldwide research and development assets of Wellcome's non-injectable migraine treatment, in order to create a viable competitor to replace the competition allegedly lost in the acquisition.(14)

2. Upjohn/Pharmacia

The FTC and the EC also examined Upjohn's merger with Pharmacia of Sweden. Following its examination of fourteen product overlaps in various European Economic Area nations(15) as well as four compounds in the R&D stage, the EC cleared the merger last year.(16)

The FTC subsequently issued a consent order that requires the merged company to divest Pharmacia's U.S. assets relating to R&D for "9-AC," a colorectal cancer drug that Pharmacia is developing under a license from the National Cancer Institute.(17) Meanwhile, Upjohn's competing "CPT-11" compound is closer than 9-AC to receiving FDA approval.(18) The FTC's complaint and order address the potential competitive relationship between the two compounds and the desirability of keeping both in the running to the marketplace.

In light of differences between the European and U.S. markets, it should not be surprising that the EC and the FTC came to different conclusions about the colorectal cancer drugs in development. Nor is it startling that thinking about "innovation markets" is in flux on both sides of the Atlantic.

C. Lockheed Martin/Loral

In the defense sector, Lockheed Martin Corporation's acquisition of Loral Corporation came under FTC and EC scrutiny early this year. In late March, the EC announced that it had cleared the transaction.(19) Three weeks later, the FTC announced that Lockheed Martin had agreed to settle charges that the acquisition would lessen competition in several markets, including air traffic control systems and certain commercial satellites.(20)

One aspect of this transaction that caught the attention of both the FTC and EC staff was the proposed spinoff of Loral's space and telecommunications businesses to a new entity, Loral Space & Communications, Ltd. This spinoff would entail the establishment of several links between Lockheed Martin and Loral Space.(21) Lockheed Martin and the new Loral Space entity would be competitors in certain commercial satellite markets in the U.S. and Europe, and so the EC and the FTC questioned whether these links would give Lockheed Martin control over Loral Space.

The FTC's proposed order requires Lockheed Martin to take steps to attenuate those links. After exchanging views with FTC staff about the potential effects of these links, the EC concluded that they were insufficient to give Lockheed Martin the means to exercise "decisive influence" -- (22)and thus control -- over Loral Space.

D. Another Case

One other matter during the past year -- which I cannot identify by name -- further illustrates international information-sharing and other forms of cooperation.

This transaction required notification to the EC but not to the FTC, even though the transaction would affect assets generating substantial sales into the U.S. In several conversations about the matter, FTC staff helped the EC to obtain public information about U.S. sales of the product.

Although sales of one or more relevant products into the U.S. may have made this transaction likely "substantially to lessen competition" -- the standard under Section 7 of the Clayton Act -- an (23)FTC case could have triggered a challenge to the FTC's personal jurisdiction over the parties and raised questions involving the extraterritorial reach of U.S. law. In a sense, the FTC "deferred" to the EC in this matter, and that type of deference may be the proper way to proceed in some transactions. As more and more countries have initiated merger control, transactions with transborder effects are increasingly likely to come under multiple nations' jurisdiction. Cooperation among competition authorities can help promote multiple nations' economic interests while maintaining respect for national sovereignty and making the most efficient use of enforcement resources.

E. Continuing Cooperation

Although the cases I've described involved U.S.-EC cooperation, we have had good experiences with our other partners as well. We have collaborated with the German Federal Cartel Office and exchanged information with the U.K.'s Office of Fair Trading, with similarly fruitful results, in several cases over the past couple of years. In future investigations involving concurrent jurisdiction with other nations, we expect to try to adopt consistent approaches to such elements as market definition, competitive effects, and relief. In order to maximize transnational consistency, we plan to continue with procedures such as mutual notification as early as practically possible, followed by conference calls so that our staffs can identify relevant markets of mutual interest, potential competitive effects, possible remedies, and other key issues.

F. Expanding the Limits of Cooperation: The International Antitrust Enforcement Assistance Act of 1994

One historical shortcoming of bilateral agreements has been that they could not empower U.S. antitrust agencies to share confidential information with a foreign authority. Parties to transactions subject to antitrust review in more than one cooperating country could waive confidentiality, but that has been rare. Cartelists, operating in several countries, had the comfort of knowing that agencies investigating their activities could not share with each other the fruits of their separate investigations.

But things changed in November 1994. Enactment of the International Antitrust Enforcement Assistance Act ("IAEAA")(24) made it unnecessary to rely on the parties to waive confidentiality. That Act is expected to foster the reciprocal sharing of investigative information among enforcement agencies under certain strict terms. Th(25)e statute's effectiveness will depend in large part on the building of confidence among all the participants.

The IAEAA authorizes the FTC and the Justice Department to negotiate and conclude bilateral agreements with other governments through which confidential information can be shared and nations can use compulsory process to obtain information for each other. Bilateral agreements must stipulate that the confidentiality of shared information can be assured.

There are three general principles to keep in mind with respect to this Act. The first is confidentiality: simply reading the Act is difficult because the Congress inserted complex, widely-scattered provisions to make sure that the confidentiality of competitively sensitive information would be maintained. The second principle is reciprocity, which does not require strict score-keeping or absolute parity, but instead means that the partners to an agreement are being comparably responsive to each other's requests. The third principle is the public interest, which means that neither party to an agreement is obligated to respond favorably to a request for assistance; in fact, the IAEAA recognizes there in some circumstances it would be contrary to the public interest to fulfill a request. (26)

The U.S. enforcement agencies have had preliminary discussions with a number of countries already. Many nations are in the same position the U.S. was in before the IAEAA was passed: in order to enter into agreements to share confidential information, some laws may need to be amended, and the business community will need to be persuaded that this is a good idea. Th(27)ose are not tasks to be taken lightly. Nevertheless, this statute provides enforcers with the tools necessary to work with our foreign counterparts while assuring confidentiality for competitive information.

III.PROSPECTS FOR BROADER INTERNATIONAL AGREEMENT: SUBSTANCE AND PROCEDURE

In recent years, practitioners, scholarly observers, and international organizations -- particularly the OECD -- have examined substantive and procedural convergence among multiple nations' antitrust policies. Over nearly five decades, there have been proposals to take the ultimate step beyond convergence -- to develop an antitrust code of uniform global application, enforced through the WTO.

There is a perception that some countries do not enforce antitrust policy at a level that recognizes the importance of international trade. A WTO code on competition policy could provide the mechanism for resolving disputes that arise out of a perceived failure to enforce national antitrust laws. The sticking point is whether agreement can be reached on a sufficiently stringent set of antitrust policies. Fear of a "lowest-common-denominator" antitrust code has made many U.S. policymakers skeptical about pursuing a world code.(28)

I hope to see a growing consensus -- both within the United States government and internationally -- that the overall objectives of trade policy and competition policy should be the same. I also hope to see a lessening of the historic tensions between trade policy and competition policy and a recognition around the world that one nation's imposition of trade sanctions against another may benefit a domestic industry but will rarely benefit consumers.

Trade policy and competition policy should both aspire to remove obstacles to efficient markets. Of course, the ultimate goal should be to provide consumers with access to an array of competitively priced goods and services. Many have suggested supplanting the system of trade remedies with a more pro-consumer, antitrust-based system -- for instance, replacing antidumping proceedings with antitrust actions under more stringent predatory pricing standards. These fairly sweeping proposals reach far beyond the current consensus on competition policy and its enforcement. A more practical -- and more reachable -- goal may be fostering convergence in competition policy through bilateral and multilateral cooperation in the enforcement of national antitrust laws.

The differences in nations' economic development and culture continue to dictate differences among their antitrust systems. Even if a nation with a sophisticated, open-market-based economy and a long-standing tradition of antitrust enforcement and a nation lacking those attributes share the bedrock goal of maximizing consumer welfare and allocative efficiency, politics and national policy objectives may dictate marked differences between the enforcement priorities of the two countries' antitrust systems.(29)

It may seem obvious to the casual observer that worldwide convergence among national competition policies holds out the long-run promise of making the law easier for multinational firms to understand and obey. But how far and fast the convergence process should go, and whether a single antitrust code should ultimately reign in most or all of the world's nations, are issues deservedly undergoing intense debate. My inclination is to support a cautious approach. The great variety among nations' stages of economic development, and the numerous political and policy considerations that make up some nations' competition policies, counsel in favor of gradualism. The way to build a consensus on antitrust policy and enforcement is through expanded bilateral and multilateral cooperation in the enforcement of existing laws. If cooperation is enhanced, mutual trust and understanding can be built, and someday we may have sufficient procedural and substantive harmonization to begin considering whether a consensus on an international agreement can be reached.

Thank you for your attention. I would be happy to respond to your questions.

ENDNOTES

(1). U.S. Department of Justice and Federal Trade Commission, Antitrust Enforcement Guidelines for International Operations (Apr. 6, 1995), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,107.

(2). Agreement Between the Government of the United States of America and the Government of Australia Relating to Cooperation on Antitrust Matters (June 29, 1982), reprinted at 4 Trade Reg. Rep. (CCH) ¶ 13,502.

(3). Agreement Between The Government of The United States of America and The Government of Canada Regarding The Application of Their Competition and Deceptive Marketing Practices Laws (Aug. 3, 1995), reprinted at 4 Trade Reg. Rep. (CCH) ¶ 13,503.

(4). Agreement Between the Government of the United States of America and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices (June 23, 1976), reprinted at 4 Trade Reg. Rep. (CCH) ¶ 13,501.

(5). Agreement Between The Government of the United States of America and The Commission of the European Communities Regarding the Application of Their Competition Laws (Sept. 23, 1991), reprinted at 4 Trade Reg. Rep. (CCH) ¶ 13,504; 61 Antitrust & Trade Reg. Rep. (BNA) 382-85 (Sept. 26, 1991); and OJ L 95/45 (27 Apr. 1995), corrected at OJ L 131/38 (15 June 1995).

(6). The 1995 Recommendation of the OECD Council Concerning Cooperation Between Member Countries on Restrictive Business Practices Affecting International Trade, OECD Doc. C(95)130/FINAL (27-28 July 1995).

(7). See, e.g., International Chamber of Commerce, "Competition Law: Business concerns about confidentiality of corporate information" (press release, Sept. 26, 1995); but see International Antitrust -- An FTC Perspective, remarks of FTC Chairman Robert Pitofsky before the Fordham Corporate Law Institute, 22nd Annual Conference on International Antitrust Law and Policy (Oct. 26, 1995) (addressing the concerns raised by the International Chamber of Commerce), to be printed in 1995 Fordham Corp. L. Inst.

Confidentiality received much attention during last year's review of the EU-U.S. Cooperation Agreement by the EU's Council of Ministers. That review culminated in the Council's conclusion of the Agreement on April 10, 1995, an Act required by the Treaty Establishing the European Community, Art. 228, as interpreted by the European Court of Justice in Case-327/91, French Republic v. Commission of the European Communities, decision of Aug. 9, 1994. Decision of the Council and Commission of 10 April 1995 (95/145/EC, ECSC), OJ L 95/45 (27 Apr. 1995), corrected at OJ L 131/38 (15 June 1995).

(8). Shell/Montecatini, Commission Decision 94/811/EC of 8 June 1994, Case IV/M.0269, OJ L 332/48 (22 Nov. 1994); Montedison S.p.A. et al., FTC Docket No. C-3580 (consent order issued, May 25, 1995), 60 Fed. Reg. 31469 (June 15, 1995).

(9). The relevant geographic markets for polypropylene and polypropylene-related production were western Europe and the U.S. plus Canada, while the relevant geographic market for polypropylene and polypropylene-related technology was found to be the world.

(10). 1994 Fordham Corp. L. Inst. 187-95 (B. Hawk ed. 1995). See also Pitofsky, International Antitrust -- An FTC Perspectivesupra n.7.

(11). The European Agency for the Evaluation of Medicinal Products ("EMEA") -- established by Council Regulation (EEC) 2309/93 and located in London -- offers the possibility of EC-wide approval for the marketing of new drugs.

(12). For a treatment of some of the antitrust issues involved in what are sometimes called "innovation markets," see U.S. Department of Justice and Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property (Apr. 6, 1995), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,132; FTC Hearings on Global and Innovation-Based Competition (transcripts and prepared statements),available at FTC Home Page on the World Wide Web, http://www.ftc.gov. See also Innovation Markets in Merger Review Analysis, prepared remarks of FTC Commissioner Roscoe B. Starek, III, before the Continuing Education Seminar, The Florida Bar (Orlando, Feb. 23, 1996), available at FTC Home Page on the World Wide Web, http://www.ftc.gov.

(13). Glaxo/Wellcome, European Commission Decision of 28 February 1995, Case No. IV/M.555 (public version).

(14). Glaxo plc, FTC Docket No. C-3586 (consent order issued, June 14, 1995), 60 Fed. Reg. 39396 (Aug. 2, 1995).

(15). The European Economic Area comprises the EU's Member States together with the remaining members of the European Free Trade Association (except Switzerland).

(16). Upjohn/Pharmacia, European Commission Decision of 28 September 1995, Case No. IV/M.631 (public version). In none of the markets examined did the EC find that the merger would lead to a dominant position that would hinder competition.

(17). The Upjohn Co. and Pharmacia Aktiebolag, FTC Docket No. C-3638 (consent order issued, Feb. 8, 1996), reported in 5 Trade Reg. Rep. (CCH) ¶ 23,914.

(18). The EC examined this R&D market but concluded that there is no overlap in Europe and that, in any event, Pharmacia's 9-AC faces several potentially strong competing products and is still subject to several years of clinical trials before its therapeutic profile is ascertained. In the EC's view, experience suggests that 9-AC's final use is likely to be different from that for Upjohn's CPT-11.

(19). EC press release, IP/96/277 (28 Mar. 1996).

(20). Lockheed Martin Corporation, FTC File No. 961 0026 (consent agreement accepted for public comment, Apr. 18, 1996), 61 Fed. Reg. 18732 (Apr. 29, 1996).

(21). Specifically, Lockheed Martin would acquire a 20 percent convertible preferred equity interest in Loral Space; Bernard Schwartz, the Chairman and CEO of Loral Space, would be appointed Vice Chairman of Lockheed Martin; and Lockheed Martin would provide certain technical services to Loral at cost.

(22). "Decisive influence" is a critical test in the EC's Merger Regulation. Council Regulation (EEC) No. 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ L 395, 30 Dec. 1989; corrected at OJ L 257, 21 Sept. 1990), Article 3(3)-(4). The EC also stated, however, that the links between Lockheed Martin and Loral Space might infringe other EC competition rules, and the EC has reserved its position on this question.

(23). 15 U.S.C. § 18.

(24). Pub. L. No. 103-438, 108 Stat. 4597 (Nov. 2, 1994).

(25). The statute was based upon authority granted to the Securities and Exchange Commission in the late 1980s to share confidential information from its files with foreign authorities, to obtain and keep confidential information received from foreign authorities, and to obtain information in the U.S. on behalf of foreign enforcement agencies. See 15 U.S.C. § 78u.

(26). This feature of the Act bears some similarity to Section 5 of the Federal Trade Commission Act, which requires a public interest determination by the Commission before it commences an enforcement action.

One noteworthy provision of the IAEAA is the authority granted to the Justice Department and the FTC to use their compulsory process tools to obtain evidence for a foreign enforcement authority even where the matter in question would not violate U.S. law. Another is that information obtained by criminal grand juries may be made available to foreign enforcement authorities. Finally, although information obtained through the U.S. premerger notification program may not be shared, the Act does allow the FTC and the Justice Department to use their compulsory processes to obtain information in merger cases that then can be shared with foreign authorities.

(27). See note 7, supra.

(28). Seee.g., Wood, The Internationalization of Antitrust Law: Options for the Future, address before the DePaul University Law Review Symposium (Chicago, Feb. 3, 1995).

(29). Seee.g., Wood, International Competition Policy in a Diverse World: Can One Size Fit All?, in Fordham U. School of Law, 1991 Corp. L. Inst., EC AND U.S. COMPETITION LAW AND POLICY 71, 73 (B. Hawk ed. 1992) ("As we in the West rush to share our antitrust experience with others, it is worth pausing to make sure that we are not assuming that an unthinkingly homogeneous set of world-wide competition rules automatically creates the best of all possible worlds."). Wood concluded: "The challenge in years to come will be to find the common elements [among diverse nations' competition policies] and to build on them, without losing sight of the differences in perspective and culture that inevitably exist." Id. at 85.