EU and U.S. Approaches to International Mergers--Views from the U.S. Federal Trade Commission

Remarks before EC Merger Control 10th Anniversary Conference, The European Commission Directorate General for Competition, International Bar Association, Metropole Hotel

Brussels, Belgium

Date:
By: 
Robert Pitofsky, Former Chairman

It is a delight for me to participate in this panel on Merger Control in an International Context, and to join my enforcement colleagues and friends, Alex Schaub and Joel Klein, in this discussion with Peter Sutherland, Jacques Bougie, Mario Siragusa, and our moderator Sir Christopher Bellamy.

By any measure, it has been a remarkable 10 years since the EC Merger Regulation first went into effect.(2) In those days there was a good deal of emphasis on apparent differences in approach between the EU and the U.S. - for example, would the EU Merger Regulation cover "oligopoly behavior," would "industrial policy" be a serious factor in merger enforcement, how would the EU treat efficiencies as a claimed mitigating factor, and what sort of remedies would it impose?(3) Concern was expressed about whether U.S. and EC enforcement authorities might take decisively different views of competition policy as it affected mergers.(4)

Today, virtually all knowledgeable observers agree that there has been substantial convergence in the method and content of merger enforcement in the EC and U.S., and a remarkable improvement in coordination and cooperation between the two enforcement authorities.(5) These changes were the result of thoughtful and intensive efforts in Europe, led by Sir Leon Brittan, Karel Van Miert and now Mario Monti, and in the United States, by Jim Rill, my predecessor Janet Steiger and Anne Bingaman. Joel Klein and I are committed to continuing this constructive process.

I would like today to examine the various successful accomplishments of the last 10 years (without neglecting the occasional serious problems), and in that review suggest promising areas of future development.

1. Cooperative "processes."

I will be brief in discussing this subject because it has been touched upon so often in past programs and speeches.(6)

In my view, it is hard to imagine how day-to-day cooperation and coordination between enforcement officials in Europe and the United States could be much improved. Within the bounds of confidentiality rules, we share, on a regular and continuing basis, views and information about particular transactions, coordinate the timing of our review process to the extent feasible, and almost always achieve consistent remedies.

This cooperation did not just happen. EC and U.S. officials took affirmative steps shortly after the EC Merger Regulation was adopted to clarify policies and promote complementarity. A formal cooperation agreement "to promote cooperation and coordination and lessen the possibility or impact of differences between the parties and their application of competition laws" was signed in 1991.(7) Before the ink was dry on the Agreement, staff liaison contacts were intensified and, in mid-1992, the Merger Task Force hosted a workshop in which EC and U.S. staff shared their experiences in the investigation and analysis of mergers. Those initial efforts led the way to the extraordinary coordination that we see today.

2. Procedural Reform.

Many observers (myself included) believed 10 years ago that procedural convergence would be easier to achieve that substantive coordination. It has not turned out that way. Procedures in merger cases reflect the nature of judicial and administrative structures in each jurisdiction. As these structures differ, therefore, so do the procedures. As these enforcement structures often apply to enforcement beyond the realm of merger control, they are difficult to change. For example, in the United States, the antitrust enforcers need the assistance of the courts to stop a merger and must be prepared as soon as the mandatory waiting period expires to submit their objections and evidence in court. In the EC, the Commission does not need judicial assistance in the first instance. As a result, the information demands made on parties and third parties during an investigation differ, reflecting our different enforcement structures.

Certainly in the last 10 years, considerable effort has been devoted toward devising a single merger filing form, adopting uniform filing times, and developing roughly co-extensive review periods.(8) But, coordination is not simple. For example, there are too many merger filings to be reviewed at the Federal level in the United States - almost 4,700 in 1999 - for U.S. enforcement authorities to adopt the EC's approach of asking in the first instance for extensive information. On the other hand, there is no reason why the EC, which reviews approximately 300 mergers with a Community dimension each year, and is subject to tight, absolute decision deadlines, should abandon its request for extensive information in the initial filing.

Let me restate something I have said elsewhere about coordination of investigations:(9) the parties to the transaction, themselves, have much to contribute to coordination. The procedural differences between EC and U.S. law actually provide much scope for coordination of our respective processes. Granted, the absolute deadlines in the EC Merger Regulation can present a challenge to coordination in some cases. But our experience has been that coordination is possible when parties and enforcers alike make good faith efforts to cooperate.

3. Substantive Convergence.

There has been remarkable substantive convergence between the EC and the U.S. in merger review over the last 10 years. The most important reason for that - and here I will probably betray my academic background - is that increasingly both jurisdictions have come to share economic premises about the benefits and competitive threats of mergers. Once premises are shared, common approaches may not be inevitable but they are far more likely.

Let me elaborate by discussing five important aspects of merger review in the U.S. and EC: measuring market power; unilateral effects; collective or coordinated effects; efficiencies; and remedies.

a. Measuring Market Power (i.e., Defining Relevant Markets).

The EC market definition guidelines, issued in 1997,(10) are remarkably similar to the Department of Justice-FTC merger guidelines first adopted in 1982 and revised in 1992 and 1997.(11) Numerous commentators have noted their similarity.(12) Application of rules to specific facts leaves room for differences, but the rules themselves can hardly be distinguished.

In one controversial area, involving the issue of whether there can be anti-competitive effects as a result of lessening of competition in an "innovation" market, the two jurisdictions have reached common approaches. For example, in Ciba-Geigy/Sandoz(13) both jurisdictions agreed on the existence of an innovation market for the development of gene therapies. Although the two enforcement authorities disagreed on the need for intervention and remedy, our work on that case showed convergence in our respective approaches to innovation markets, as described by the EC's John Temple Lang in his outstanding presentation to the Fordham Institute in 1996.(14)

b. Mergers That Lead to Dominant or Monopoly Position.

The EC Merger Regulation and the U.S. Clayton Act, as interpreted and applied, clearly recognize that mergers that place a firm in a position where it can raise price without a sufficient threat from an existing challenger, assuming there are significant barriers to entry, can be anti-competitive. Indeed, the U.S. has been slightly more inclined in recent years to challenge mergers because they "tend to create a monopoly" and therefore produce anti-consumer and anti-competitive unilateral effects than was the case previously. For example, in 1994, both the EC and the FTC found that Shell and Montedison's joint venture would have led to the creation of a monopoly over the two main technologies for the manufacture of polypropylene.(15) In 1997, the FTC and two EU member state competition authorities (Germany and the United Kingdom) found that Federal-Mogul's proposed acquisition of T&N would have led to the creation of a near monopoly position in the market for automotive and light truck engine bearings and successfully negotiated a settlement that resulted in the divestiture of T&N's bearings business.(16) The FTC also successfully challenged the proposed merger of Office Depot and Staples which would have led to the creation of a dominant nationwide chain of office supply superstores.(17) Occasionally, in some countries, proponents of a merger, even one that leaves the combined firm dominant in its market, have responded to charges of anti-competitive effects by citing "industrial policy" - the defense that increased size is essential for a firm to compete effectively and that the merger would lead to improvements in the home country's balance of trade and employment. In the United States, there never has been significant academic or case law support for a modification of antitrust policy to take broad "industrial policy" considerations into account.(18) In the fall of 1991, in an immensely important EC decision, the Commission blocked ATR's proposed acquisition of de Havilland, signaling DG-IV's and the Commission's faithfulness to competition policy over industrial policy.(19) My own view is that the industrial policy defense, is almost always a bankrupt concept - first, because size (as opposed to efficiency) is no assurance of success in any market, global or local, and second, because antitrust enforcement is a blunt and ineffective device to provide solutions to issues like balance of trade or employment. Other government policies are much more likely to be effective.

c. Collective or Oligopolistic Effects.

In the United States the principal avenue of challenge to mergers is based on the charge that they significantly increase concentration and thereby enhance or facilitate the joint exercise of market power. On the other hand, I recall that when the EC Merger Regulation was adopted, there was a lively debate as to whether an increase in concentration, and the threat of coordinated action, could ever provide a basis for an antitrust challenge. In the summer of 1992, DG-IV and the European Commission indicated in the Nestlé/Perrier case they would not shy away from challenging a merger that increased concentration in oligopolistic markets.(20) The Commission's interpretation of the regulation was subsequently upheld by the courts in the Kali und Salz(21) and Gencor cases.(22)

Here the point about shared economic premises and the way they lead informally to "soft convergence" can be underscored. At one time, United States enforcement officials were comfortable challenging mergers that may have reduced concentration in a properly defined relevant market from as many as 10 to 9 firms.(23) Today the market shares reflected in the DOJ-FTC guidelines suggest that the threshold for undue concentration is much higher. Unless there are exceptional circumstances, U.S. enforcement initiatives these days usually involve concentration among leading firms reducing the number of competitors from no more than 6 to 5 firms. The EC has brought cases based on an oligopoly theory where concentration involves reduction of a 3 firm market to 2(24) and a 4 firm market to 3.(25)

My impression is that two jurisdictions have moved closer, if not to absolute convergence, because of a shared appreciation that mergers that contribute substantially to concentration can produce cartel-like effects (hence the EC has moved to expand its zone of challenge), but those effects will occur only if there is relatively high concentration, significant barriers to entry and conditions that facilitate collusion or non-collusive coordination (hence the U.S. has narrowed its range of targets). Ten years from now I wonder if observers will be able to detect significant differences in the way the two jurisdictions address the combined market share of mergers that are likely to have oligopolistic effects.

d. Efficiencies as a Mitigating Factor.

In the past decade, both the EC and the U.S. have struggled with the question of the extent to which efficiency claims ought to be allowed in defense of mergers in moderately concentrated markets.

Article 81(3) of the EC Treaty authorizes the Commission to grant exemptions to agreements that "improv[e] the production or distribution of goods or . . . promot[e] technical or economic progress while allowing consumers a fair share of the resulting benefit."(26)The EC Merger Regulation, at least in my view, left ample room to take technical and economic progress into account "provided that it is to consumers' advantage and does not form an obstacle to competition."(27) Nevertheless in the de Havilland case, where the Commission rejected an efficiency claim on grounds that it was insubstantial, it threw the question of the legitimacy of the efficiency defenses into a question by commenting that it was reserving the question "without prejudice to whether such considerations are relevant for assessment under Article 2."(28) In a 1995 submission to the OECD, the Commission stated,

There is no real legal possibility of justifying an efficiency defense under the Merger Regulation. Efficiencies are assumed for all mergers up to the limit of dominance - the "concentration privilege". Any efficiency issues are considered in the overall assessment to determine whether dominance has been created or strengthened and not to justify or mitigate that dominance in order to clear a concentration which would otherwise be prohibited.(29)

So, while the Commission does take efficiencies into account, the scope for doing so appears to be limited.

Until recently, the role of efficiencies as a possible defense of mergers under U.S. law was even more confusing. Claims of efficiency were generally examined as a relevant factor in the enforcement agencies' exercise of prosecutorial discretion, but according to older Supreme Court cases they were not relevant when a merger transaction was examined in court.(30) In 1997, however, the U.S. Department of Justice and FTC modified their joint horizontal merger guidelines to clarify that efficiencies ought to be taken into account, and to define the nature of efficiencies that would be of most significance. In several subsequent merger challenges brought by the FTC in the U.S. courts - in particular, the Office Depot/Staples(31) and drug wholesaler(32) cases - the parties argued that efficiencies justified the merger but those claims, while carefully considered by the courts, were not sufficient to avoid a finding of violation.

My view is that the acceptance and clarification of the role of efficiencies in defense of mergers has been, on balance, a useful development in the United States. If there are no significant efficiencies, enforcement agencies and judges can be much more comfortable finding that particular mergers are anti-competitive - a point first emphasized by my colleague, Joel Klein. If there are efficiencies, they should be taken into account in close cases (and not when the merger leads to monopoly or near-monopoly), at least where proof of those efficiencies is relatively clear, the benefits are likely to be passed on to consumers, and the efficiencies cannot be achieved in a substantially less anti-competitive way. While no United States court has yet accepted an efficiency defense to justify an otherwise illegal deal, I believe it is just a matter of time until such a defense succeeds. Meanwhile, I can attest first-hand that there have been cases in which the exercise of prosecutorial discretion not to challenge was influenced by the presence of significant efficiencies.(33)

e. Questions of Remedy.

One of the more interesting examples of possible convergence between U.S. and EC approaches, comparable to that we have seen in other areas of merger enforcement, is in the area of remedies. In the U.S., as in Europe, most merger challenges are settled by agreements that involve restructuring; relatively few are litigated in court. Merger restructuring to address competitive problems and preserve otherwise legitimate proposals is an accepted part of antitrust but some of the restructuring proposals that we have seen in the United States are more extensive and complicated in recent years than any seen before.

Since the effectiveness of restructuring is such a critical part of merger policy, the FTC conducted and published a study of the efficacy of divestitures it ordered between 1990 and 1994.(34) Most restructuring proposals accepted by the FTC were successful and the acquiring company became a viable competitor; in the relatively few that were not entirely satisfactory there were recurring patterns such as buyers that had informational disadvantages and lack of experience in particular markets, or sellers who sought out marginally effective buyers. To address those problems the U.S. has adjusted its procedures modestly - for example, by insisting more frequently on up-front identification of a buyer or by reviewing the buyer's business plans with respect to the assets being acquired.

Last year, about the time the FTC issued its Divestiture Study, the EC issued a Draft Notice on Commitments in merger cases.(35) We have found much common ground in these two documents and the approaches they suggest to remedies. It was logical, therefore, when we established the joint EC-U.S. Mergers Working Group at our October 1999 bilateral consultations, that we would concentrate its initial efforts on remedies.

f. Some Bumps in the Road.

It would not be appropriate on this important occasion to celebrate only the constructive trends of the last 10 years and neglect the occasional problems. Actually there haven't been many problems that justify discussion, but one that deserves mention is theBoeing/McDonnell Douglas merger.(36)

With respect to Boeing, it is important to remember that in the end both the U.S. and the EC concluded that the merger itself did not deserve to be blocked. Concern focused upon the exclusive dealing contracts that Boeing had entered into with several air frame purchasers. The significant point there is that the law in the U.S. is relatively lenient with respect to long term exclusive dealing contracts while the law in the EC is more likely to produce a challenge.(37) Even if the law were exactly the same, people could differ in their evaluation of evidence and its particular application. One need only recall the divisions within the European Commission in certain cases, or the many 3-2 or 4-1 votes that occur in antitrust enforcement at the FTC (Joel Klein has a much easier task in this regard; he has only to agree with himself and he seems to have achieved that goal with admirable consistency). We must accept the fact that we will not agree in every case. And though Boeing will be cited as evidence of conflict and pitfalls, I suggest that it be placed in the context of the many other cases that were resolved without any conflict whatsoever.

For example, even as the Boeing case was reaching its climax, FTC and EC staff were discussing common concerns arising out of the proposed merger of Guinness and GrandMetropolitan. Those discussions sharpened the focus of our respective investigations, developed convincing market definitions, and led to identification of a product the divestiture of which would remedy anticompetitive effects on both sides of the Atlantic.(38)

Since then, the routine contacts have broadened and deepened, reflecting the merger wave that continues. Cases like ABB/Elsag Bailey(39) and Astra/Zeneca(40) demonstrated that where parties facilitate cooperation and in good faith identify and offer to remedy competitive problems arising out of their proposed mergers, EC and U.S. authorities can and will act expeditiously to clear them with appropriate undertakings. Cases like Exxon/Mobil and Air Liquide/BOC show that we can cooperate effectively in cases involving companies of enormous size and geographic scope as well as complex issues involving technology and contract rights. They also demonstrate that sometimes it is possible for the parties to develop acceptable remedies - as was the case in Exxon/Mobil, but sometimes, as in Air Liquide/BOC it is not.

In Air Liquide/BOC, the second and third largest companies in several fairly concentrated product markets in the U.S. chose to acquire the fourth (BOC) and divide it up among the two acquirers or, where that was not feasible, to sell off to a new entrant. The principal remedial arrangements necessary in Europe were focused on restoring competition in the British Isles. In the United States, the problems arose in dozens of regional markets across the continent. The EC, after considerable analysis and effort, was able to clear the transaction subject to substantial conditions; in the United States, however, the restructuring proposed by the parties was unlikely to restore competition to the status quo ante and therefore the deal was likely to be challenged. The parties thereupon decided not to pursue their bid for BOC.

In some respects, the most interesting aspect of the Air Liquide/BOC matter was the statement issued by the EU when it completed its review.(41) After acknowledging the Commission's close cooperation with the FTC in the analysis of the case, it noted that each of the companies involved in the deal

"have substantial gas businesses in the United States. The assessment conducted by the Commission relates, however, mainly to the assets and businesses on BOC located in the EEA, which are to be obtained by Air Liquide. The Commission's decision in this case therefore does not prejudice the outcome of the assessment in the United States."

In other words, the Commission sent the message that the effects on competition in Europe might not be the same as effects on competition in the United States, and cautioned that its own conclusions should not be taken as an indication of how the U.S. would treat the transaction. That is a constructive and sophisticated message that enforcement officials on both sides of the Atlantic should consider delivering in appropriate cases.

CONCLUSION

In conclusion, I think that as we look forward to next year's 10th anniversary of the EC/US cooperation agreement, it is fair to say that EC and U.S. antitrust enforcers have met their commitment to "lessen the possibility or impact of differences" between our competition laws. If there is another gathering like this in 10 or 15 years, I hope the participants then will be able to say that they are at least as close together as they were when Schaub, Klein, and Pitofsky addressed them in the year 2000.

1. Chairman of the United States Federal Trade Commission. The views expressed are my own and do not necessarily reflect the views of the Commission or other Commissioners. I want to thank Randy Tritell, John Parisi, and Debra Valentine for their very valuable help on this paper.

2. Council Regulation (EEC) No 4064/89 of 21 December 1989, OJ L 395 (30 Dec. 1989); corrected version OJ L 257 (21 Sept. 1990); as last amended by Council Regulation (EC) No 1310/97 of 30 June 1997, OJ L 180 (9 July 1997); corrected version OJ L 40/17 (13 Feb. 1998) [EC Merger Regulation].

3. See, e.g., Bernd Langeheine, "Substantive Review under the EEC Merger Regulation," 1990 Fordham Corp. L. Inst. 481 (B. Hawk, ed. 1991), and James S. Venit, "The Evaluation of Concentrations Under Regulations 4064/89: The Nature of the Beast," 1990 Fordham Corp. L. Inst. 519 (B. Hawk, ed. 1991).

4. For example, see,The Right Honourable Sir Leon Brittan QC, "Jurisdictional Issues in E.E.C. Competition Law," Hersch Lauterpacht Memorial Lectures, Cambridge, 8 Feb. 1990, at 28 ("The U.S. and the [European] Community may well one day soon take different views of a competition case.").

5. See, e.g., Robert D. Stoner, "Convergence of U.S. and E.U. Merger Enforcement," Economists Ink, Economists Incorporated, Spring/Summer 2000, at 1; and William J. Kolasky, Jr. and Leon B. Greenfield, "Merger review in the EU and US: substantive convergence and procedural dissonance," Global Competition Rev., Oct./Nov. 1998, at 22.

6. See, e.g., Karel Van Miert, "International Cooperation in the Field of Competition - A View from the EC," 1997 Fordham Corp. L. Inst. 13 (B. Hawk, ed 1998); and Robert Pitofsky, "Competition Policy in a Global Economy - Today And Tomorrow," remarks before the European Institute's Eighth Annual Transatlantic Seminar on Trade and Investment, Washington, D.C., Nov. 4, 1998, available at /speeches/pitofsky/global.htm.

7. Agreement between the European Communities and the Government of the United States of America regarding the application of their competition laws, Sept. 23, 1991, 4 Trade Reg. Rpt. (CCH) ¶ 13,504; OJ L 95/45 (27 Apr. 1995), corrected at OJ L 131/38 (15 June 1995).

8. For example, Organization for Economic Cooperation and Development, Report on Notification of Transnational Mergers, DAFFE/CLP/(99)2 FINAL, 5 Feb. l999, available at: http://www.oecd.fr/daf/clp/CLP_reports/notifmergers.pdf.

9. See, e.g., Robert Pitofsky, "International Antitrust: an FTC Perspective," 1995 Fordham Corp. L. Inst. 1, 8 (B. Hawk , ed. 1996).

10. Commission Notice on the definition of the relevant market for the purposes of Community competition law, OJ C 372 (9 Dec. 1997),available at http://europa.eu.int/comm/competition/antitrust/relevma_en.html.

11. U.S. Department of Justice and Federal Trade Commission, Horizontal Merger Guidelines, 4 Trade Reg.

Rep. (CCH) ¶ 13,104 (1992) (with April 8, 1997 revision to § 4).

12. See, e.g., Simon Baker and Lawrence Wu, "Applying the Market Definition Guidelines of the European Commission," [1998] E.C.L.R. 273.

13. Ciba-Geigy/Sandoz, OJ L 201 (29 July 1997), [1997] CEC 2,260; Ciba-Geigy,Ltd., 123 FTC 842 (1997), 5 Trade Reg. Rpt. (CCH) ¶ 24,182.

14. John Temple Lang, "European Community Antitrust Law-Innovation Markets and High Technology Industries," 1996 Fordham Corp. L. Inst. 519 (B. Hawk, ed. 1997).

15. Montedison S.p.A., et al., 119 F.T.C. 676 (1995); Shell/Montecatini, OJ L 332/48 (22 Nov. 1994), [1995] 1 CEC 2,346; revised 24 June 1996, OJ L 294/10 (19 Nov. 1996), [1997] CEC 2,008.

16. Federal Mogul Corporation and T&N PLC, FTC Dkt. No. C-3836, Decision and Order (Dec. 8, 1998), reported in 5 Trade Reg. Rpt. (CCH) ¶ 24,400.

17. FTC v. Staples, Inc., 977 F. Supp. 1066 (D.D.C. 1997).

18. See Robert Pitofsky, "The Renaissance of Antitrust," 1990 Handler Lecture, The Record of the Association of the Bar of the City of New York, Vol. 45, No. 7, Nov. 1990, p. 851.

19. Aerospatiale-Alenia/de Havilland, O.J. L 334/42 (5 Dec. 1991), [1992] 2 CEC 2,034.

20. Nestlé/Perrier, OJ L 356/1 (5 Dec. 1992), [1993]1 CEC 2,018.

21. France v. Commission, [1998] ECR I-1375.

22. Gencor v. Commission, Case T-102/96, Judgment of the Court of First Instance (Fifth Chamber, Extended Composition), 25 Mar. 1999.

23. Brown Shoe Co. v. United States, 370 U.S. 294 (1962); United States v. Pabst Brewing Co., 384 U.S. 546 (1966).

24. Gencor/Lonrho, OJ L 011/30 (14 Jan. 1997), [1997] CEC 2,055.

25. Air Tours/First Choice, [2000] CEC 2,203.

26. Treaty establishing the European Community, as last amended by the Amsterdam Treaty, Article 81(3) [EC Treaty].

27. EC Merger Regulation, supra note 2, Art. 2.1.(b).

28. de Havilland, supra note 19, at ¶ 65. Frédéric Jenny commented on this and other instances of European Commission consideration of efficiency claims in two articles presented to the Fordham Corporate Law Institutes. 1992 Fordham Corp. L. Inst. 591 (B. Hawk, ed. 1993) and 1993 Fordham Corp. L. Inst. 185 (B. Hawk, ed. 1994).

29. "Efficiency Claims in Mergers and Other Horizontal Cooperative Agreements," Note by the European Commission Delegation, DAFFE/CLP/WD(95)9, available at http://www.oecd.fr/daf/clp/Roundtables/EFFC00.HTM.

30. U.S. v. Philadelphia National Bank, 374 U.S. 321 (1963); FTC v. Procter & Gamble, 386 U.S. 568 (1967).

31. FTC v. Staples, Inc., supra note 17.

32. FTC v. Cardinal Health, Inc., 1998-2 Trade Cas. (CCH) ¶ 72,226 (D.D.C. 1998).

33. For more detailed remarks on this topic, see Robert Pitofsky, "Efficiencies in Defense of Mergers:18 Months After," George Mason Law Review Antitrust Symposium: The Changing Face of Efficiency, Washington, D.C., Oct. 16, 1998, available at: /speeches/pitofsky/pitofeff.htm.

34. Federal Trade Comm., "A Study of the Commission's Divestiture Process" (1999), available atwww.ftc.gov/os/1999/9908/index.htm#6.

35. Draft Commission Notice on commitments submitted to the Commission under Council Regulation (EEC) No 4064/89 and under Commission Regulation (EC) No 447/98, available athttp://europa.eu.int/comm/competition/mergers/legislation/draft_notices/...

36. The Boeing Co., et al., Joint Statement closing investigation of the proposed merger and separate statement of Commission Mary L. Azcuenaga, FTC File No. 971-0051, July 1, 1997, reported in 5 Trade Reg. Rpt. (CCH) ¶ 24,295; Boeing/McDonnell Douglas, OJ L 336/16 (8 Dec. 1997), [1998] CEC 2,069.

37. As I noted in my remarks to the 1997 Fordham Corporate Law Institute, U.S. case law suggests a safe harbor for exclusive dealing contracts that foreclose less than 20 percent of the market, and probably even 30 percent. By contrast, the European Commission within the past decade has challenged exclusive agreements foreclosing 10 to 15 percent of the relevant market. Robert Pitofsky, "Vertical Restraints and Vertical Aspects of Mergers," 1997 Fordham Corp. L. Inst. 111, 117, 119 (B. Hawk, ed. 1998).

38. Guinness/GrandMetropolitan, [1998] CEC 2,502; Guinness PLC, et al., FTC Dkt. No. C-3801, Decision and Order, Apr. 17, 1998,reported in 5 Trade Reg. Rpt. (CCH) ¶ 24,359.

39. ABB/Elsag Bailey, Case No IV/M.1339, Commission Decision of 16 Dec. 1998; In the Matter of ABB AB and ABB AG, FTC Dkt. No. C-3867, Decision and Order, Apr. 22, 1999, reported in 5 Trade Reg. Rpt. (CCH) ¶ 24,552.

40. Astra/Zeneca, Case No IV/M.1403, Commission Decision of 26 Feb. 1999; Zeneca Group plc, FTC Dkt. No. C-3880, Decision and Order, June 10, 1999, reported in 5 Trade Reg. Rpt. (CCH) ¶ 24,581.

41. Commission press release IP/00/46, 18 Jan. 2000, Commission approves the acquisition of parts of BOC (UK) by Air Liquide (France) subject to conditions. The Commission's decision in Air Liquide / BOC, Case No COMP/M.1630, of 18 Jan. 2000, has not yet been published.