A Merger Denied, 13 years later: The GE/Honeywell Saga

Through COMESA, a regional organization on which this resource has published extensively, African countries have made a significant foray into cross-border merger control.

As the world’s competition regimes continue to proliferate, a global understanding and international cooperation are becoming increasingly essential to a coherent worldwide merger-control scheme and parties’ concomitant legal strategy.

By Sophia A. Vandergrift (FTC) & Josselin J. Lucas (Paul Hastings LLP) [2]

Introduction

Almost 15 years ago, on the eve of Independence Day, on July 3, 2001, the EU Commission decided to prohibit the acquisition of Honeywell by General Electric.[3] The EU Commission’s decision to block this transaction was subject to a firestorm of criticism as the U.S. Department of Justice previously decided not to challenge the transaction. As noted at that time by Ms. Deborah Platt Majoras,[4] then Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice:

“The U.S./EU divergence on the GE-Honeywell decision underscores the need to continue working cooperatively and constructively (…). The Antitrust Division has been open, both in private discussions with our counterparts at the European Commission and in appropriate public fora, in our disagreement with the EU’s decision and the bases for it. Indeed, we have been criticized by some as being overly critical. We respectfully disagree. In our view, for cooperation to be meaningful, i.e., for it to contribute significantly to effective global antitrust enforcement, it must include honest discussion of areas of agreement and disagreement, and careful dissection of divergent decisions”.[5]

In a recent speech delivered in Washington, D.C., Joaquin Almunia, Vice-President of the European Commission responsible for Competition Policy stated:

“I believe that, almost 15 years after the GE/ Honeywell saga, a lot has been made to ensure that our respective authorities understand each other’s concerns when they arise”.[6]

In this regard, 2013 was a distinct year for the EU and U.S. Agencies. Several cases provoked strong cooperation between them, notably in the aviation industry (General Electric/Avio[7]and American Airlines/US Airways[8]) and in advertising activities (Publicis/Omnicom[9]). Mr. Almunia also pointed out that cooperation does not mean identical decisions “because of the different features of our respective markets” (e.g., see the EU Commission’s prohibition decision in NYSE Euronext/ Deutsche Börse in February 2012, a transaction that was previously cleared by the U.S. DOJ).

Almost 15 years after the “GE/Honeywell Saga”, the purpose of this article is to analyze the similarities and differences between EU and U.S. merger control proceedings. Several aspects are dealt with, including the legal framework (I.), the preliminary analysis (II.), the notification process (III.) and the procedural aspects (IV.). The funding principles of the cooperation between the EU and U.S. agencies are also detailed (V.).

I.        Legal Framework

Applicable Rules

The first EU Merger Control Regulation was adopted in December 1989 and entered into force in September 1990.[10] The current EU Merger Control Regulation n°139/2004 became effective on May 1, 2004.[11] In the United States, two primary statutes govern the merger control review process, namely: (i) §. 7A of the Clayton Act of 1914; and (ii) the Hart-Scott-Rodino Improvements Act of 1976.

Enforcement Agencies

Merger control review is divided in Europe between two types of agencies, depending upon whether applicable thresholds are met. At the EU level, the Directorate General for Competition of the EU Commission (DG Comp) has jurisdiction over EU-dimension cases. At the national level (i.e., where EU thresholds are not met but local thresholds are met), National Competition Authorities have jurisdiction to review the transactions.

In the United States, merger review is divided between two agencies: the Department of Justice (DOJ) and the Federal Trade Commission (FTC). Parties proposing a deal submit pre-merger notification filings to both agencies.[12] Pursuant to a pre-merger notification and clearance process, the deal is assigned to the agency with the greatest historical experience in the relevant commercial sector. Allocating mergers between the agencies by industry ensures that any given merger is reviewed by the enforcers with the greatest resources and depth of expertise concerning the relevant industry. Moreover, this process is efficient in that it allows the agencies to avoid duplication of expertise and promotes consistent outcomes.

Judicial Review

The EU Commission has powers of decision.[13] In practical terms, it can block any transaction that would seriously restrict competition within the EU (e.g. UPS/TNT Express in January 2013,[14] NYSE Euronext/ Deutsche Börse in February 2012,[15] General Electric/Honeywell in July 2001[16]). When the EU Commission issues a decision prohibiting a transaction that has already been implemented, the EU Commission may require the Parties in question to take steps to restore conditions for effective competition, including divestiture. Parties can file an application for annulment against the EU Commission’s administrative decision to the General Court of the EU.

In the United States, only Federal Courts have ultimate authority regarding whether to block a transaction. But before a merger reaches such ultimate disposition, the agencies’ processes for pursuing a remedy meaningfully diverge according to the agencies’ differing statuses and authorizing statutes. For instance, the FTC is an independent agency led by five politically-appointed commissioners who must authorize enforcement action. In contrast, the DoJ is an executive branch agency lead by an Assistant Attorney General. The agencies face slightly different standards when seeking preliminary relief from a federal district court.[17] Further, Congress vested the FTC with authority to conduct a full agency merits trial in the first instance, only after which the merging parties can appeal to the commission and then to a federal court. Based on the diverging processes, parties pursuing a merger against agency efforts to block the transaction face different time and resource requirements depending on which agency is reviewing the deal.

Is the Requirement to Comply With Local Merger Control Rules Limited to “Change Of Control”

As for EU merger control and at this stage, the answer is clearly positive. Basically, the EU Merger Control Regulation applies to “concentrations”, a concept which is widely defined to cover various operations that bring about a “change of control on a lasting basis”.[18] Two kinds of change of control, either on a de jure or on a de facto basis, may be subject to merger control proceedings: sole control[19] or joint control.[20] Sole control is usually acquired as a result of the acquisition of the majority of the voting rights in a company (de jure control). A substantial minority shareholder may be regarded as having de facto control, if for example, it is highly likely that the shareholder will achieve a majority of the votes cast at shareholders’ meetings (de facto sole control). Joint control exists where several entities have the ability to exercise decisive influence over another entity.

From a European perspective, the answer to this question has always been crystal clear. In this regard, minority shareholdings that do not lead to a change of control are currently not subject to EU Merger Control Regulation. However, the EU Commission would want to extend the scope of the EU Merger Control Regulation and have jurisdiction over those non-controlling minority shareholdings,[21] which would imply a significant modification of the above founding principles. Mr. Almunia recently stated that Europe is “looking at the experience of some EU countries and of other jurisdictions such as the U.S., where merger-control rules already cover this type of acquisition”.[22]

In the United States, the requirement to comply with the HSR Act is not limited to transactions that involve a “change of control”. Any acquisitions that results in the acquiring person holding more than US$75.9 million worth of voting securities of another company may require a filing, even if the amount represents a very small percentage of the total outstanding stock of the Target company. However, acquisitions of less than 50% of a non-corporate entity are not reportable. The agencies have authority to, and indeed, sometimes do, challenge non-reportable transactions that raise competitive concerns.[23]

II.     Preliminary Analysis

Notification Thresholds

In both the European Union and the United States, transactions are reviewed by the local agencies if local thresholds are met.

At the EU level, only turnover/revenues threshold exist and have not been modified since May 1, 2004. More precisely, there are two series of alternative thresholds: primary thresholds or secondary thresholds. Primary thresholds[24] are met where: (i) the combined aggregate worldwide turnover/revenues of all the undertakings concerned exceed €5 billion; (ii) the aggregate EU-wide turnover/revenues of all the undertakings concerned exceeds €250 million. Alternatively, secondary thresholds[25] are met where: (i) worldwide turnover/revenues of the undertakings concerned exceed €2.5 billion; (ii) the aggregate EU-wide turnover/revenues of each of at least two of the undertakings concerned exceed €100 million; and (iii) in each of at least three Member States of the EU (a) the combined aggregate turnover/revenues of all the undertakings concerned is more than €100 million and (b) each of at least two of the undertakings concerned achieves a turnover of more than €25 million (in each of the same three Member States identified). However, even if the above alternative primary or secondary thresholds are met, a concentration does not have a EU dimension if each of the undertakings concerned achieves more than two-thirds of its aggregate EU-wide turnover within one and the same Member State of the EU.

In the United States, three different types of thresholds, which are updated annually in order to take into account inflation, exist. These thresholds are not only based on local revenues. In order to be subject to U.S. Merger Control Rules, a transaction has to meet the commerce test (i.e. either the acquiring or acquired person is engaged in U.S. commerce or in any activity affecting U.S. commerce) and the size-of-the-transaction test (i.e., transactions over US$75.9 million) and the size-of-the-parties test. One party must have worldwide assets or sales over US $151.7 million and the other party must have worldwide assets or sales over US$15.2 million. Where the size-of-the-party test is not satisfied, the size-of-the-transaction threshold is US$303.4 million.

Specificities as for Foreign-to-Foreign Transactions

In the European Union, there are no specific thresholds for Foreign-to-Foreign Transactions.

On the contrary, in the United States, the basic test is whether the acquired person or assets generated at least US$75.9 million in sales in the United States in the last year. A limited additional exemption for certain transactions with values under US$303.4 million also exists.

Exemptions

In the European Union, if there is a change of control (or a change in the quality of control) and applicable thresholds are met by the undertakings concerned, a notification is required. There is no exemption.

In the United States, an important step at the very beginning of the process is to determine whether the contemplated transaction qualifies for any of the exemptions set forth in the HSR Act or the Rules. There are lots exemptions (e.g., the acquisition of goods or realty in the ordinary course of business; certain acquisition of voting securities “solely for the purpose of investment”).

III.   Notification Process

Deadline to File

In both jurisdictions, notification is mandatory for transactions meeting applicable thresholds and there is no specific deadline to file. However, transactions cannot be closed until approval is obtained.

Who Must Notify

In any cases, the EU Commission only receives one filing for each transaction. However, two scenarios can be distinguished. In case of acquisition of sole control, only the Acquirer has to fill out a Form. In case of acquisition of joint control, the joint controllers have to fill out one and the same Form.

In the United States, in most cases, two filings are received by the U.S. Agencies – one from the Acquiring Person and one from the Acquired Person. In 2012, a total of 1,429 transactions were reported to the U.S. Agencies representing 2,829 filings received.[26]

Language of the Notification

The EU Commission must receive a notification in one of the 24 official languages of the EU, which becomes the language of the proceedings or all notifying Parties.[27] Other parties, including the Target Company, as well as Third Parties involved in the proceedings may use another official language of the EU if they wish. In the United States, the notification is in English only.

Filing Fee

At the EU level, there is no filing fee. In some Member States of the EU, National Competition Authorities may receive a fee (e.g., Austria, Germany, Italy).

In the United States, the filing fee depends upon the size of the transactions. The filing amounts is US$45,000 for transactions valued in excess of US$75.9 million but less that US$151.7 million. For transactions up to US$758.6 million, the filing fee is US$125,000. For transactions over US$758.6 million, the filing fee is US$280.000.

Voluntary Notification

In both jurisdictions, there is no procedure for “voluntary” filing for transactions that do not meet thresholds that are exempt. In the EU, if a transaction meets local thresholds in three Member States of the EU, Parties can ask the EU Commission to review the case instead (“the one-stop-shop principle”). Likewise, in both jurisdictions, transactions that are not notified can be investigated even after they are closed.

As for transactions for which a notification is not required, the U.S. Agencies can and do investigate. It is also possible in the EU but not on the basis of EU Merger Control Rules and would be probably conducted on the basis of antitrust regulations.

Penalties for Failure to File

The EU Commission may impose fines of up to 10% of the worldwide revenues of the Parties. Electrabel was fined €20 million in June 2009 by the EU Commission for failure to file and observe the waiting period for the period from 23 December 2003 to 9 August 2007.[28] Electrabel brought an action for annulment before the General Court of the EU, which confirmed the fine in December 2012.[29]

The HSR Act aims to preserve the pre-merger competitive status quo until the agencies investigate the potential effects of a merger. In the U.S., only Federal Courts may impose fines up to US $16,000 a day for violation of the HRS Act, either for complete failure to file, or for premature integration known informally as “gun jumping.” In short, the HRS Act prohibits merging parties from transferring beneficial ownership of assets, or otherwise effectively consolidating operations pending termination of the HSR waiting period. In May 2013, Biglari Holdings was ordered by the U.S. District Court for the District of Columbia to pay an US$850,000 civil penalty to settle the charge (the complaint alleged that Biglari failed to file and observe the waiting period prior to closing as for certain acquisitions of shares of Cracker Barrel in June 2011).[30]

What Goes in the Notification

In both jurisdictions, information to be furnished in the Notification Form is similar: description of the contemplated transaction, corporate information on the Ultimate Parent Entity, owners, affiliates, and subsidiaries, prior acquisitions, production, and sales data by product or service category.

Likewise, the documents to be submitted at the same time as the Notification Form are also of the same nature. It includes: transaction documents (e.g., copy of the merger or acquisition agreement), government/ financial documents (last annual reports and annual audit reports), analytic documents (i.e., documents prepared for management to analyze the transaction, including documents discussing synergies or efficiencies, which include those prepared by third-party advisors like investment bankers, consultants, etc.).

IV.    Procedural Aspects

Timeline for Most Investigations

Most merger control investigations handled by the EU Commission are closed within « Phase I » (i.e., within 25 working days which could be extended to 35 working days). In the United States, most investigations are closed within the first 30 day period. In both jurisdictions, when the waiting period has expired and the agencies have taken no action (U.S.) or no formal decision (EU), the transaction may be consummated.

Procedural Aspects During the Initial Waiting Period/Phase I

After filing, the antitrust agencies have to review the transaction. In both jurisdictions, the Parties may request that the Agencies terminate the waiting period before it has run its full course. The agencies may, at their discretion, grant such requests.

Outcomes of Initial Waiting period/Phase I

In the European Union and the United States, there are basically three possible outcomes. The investigation may expire, in which case the Parties are free to close. It may be early-terminated by the U.S./ EU agencies in which case the Parties are free to close. It may alternatively be extended by a request for additional information (commonly referred to as a “Second Request” in the U.S. and “Article 6.1(c)” decision in the EU, opening an in-depth investigation “Phase II”).

In-Depth Investigation

If they think that the contemplated transaction presents serious antitrust concerns, the U.S. and EU agencies can issue a Second Request and an art.6(1)(c) decision, respectively.

In 2012, 10 transactions were subject to Phase II investigation by the European Commission out of a total of 283 transactions that were notified to the EU Commission.[31] Meanwhile, 49 transactions were subject to a Second Request by the U.S. Agencies out of a total of 1,429 reported transactions that were reported to the U.S. Agencies (representing 2,829 filings received).

Timetable of In-Depth Investigation

The EU timetable of the in-depth investigation is extremely different from the U.S. timetable.

As for European Merger Control Rules,[32] the EU Commission has 90 working days (after the date on which the in-depth investigation was initiated), which can be extended to 105 working days where commitments are offered by parties within 55 working days of the commencement of Phase II. An extension of the Phase II time limit is also possible at the request of the parties, for a period of up to 20 further working days. Several detailed questionnaires are usually sent by the EU Commission. Economic analysis is required very early in the process. The volume of requested documents is usually much smaller than in the United States.

In the United States, the waiting period clock is stopped until both Parties certify compliance with the Second Request. After certification of compliance, the agency has another 30 days of review, unless the agency negotiates a timing agreement that alters this timeline. Second Requests typically demand ordinary-course-of-business documents, data, and interrogatory answers. Second Requests may require extensive production of party materials, sometimes requiring that the Parties produce hundreds of thousands or even millions of documents from numerous company employees and from their operations all over the world. If the requested documents are not in English, the Parties must prepare and submit translations. The parties and the agencies negotiate regarding the necessary number of document custodians, investigational hearings, or investigatory depositions. In many cases, compliance takes months to achieve.

Fundamental Differences in the In-Depth Investigation Approach

The EU Commission can block any transactions (e.g. UPS/ TNT Express in January 2013; NYSE Euronext/ Deutsche Börse in February 2012; Olympic Airways/Aegean Airlines in 2011; and Ryanair/Aer Lingus in 2007). The EU Commission will not have to sue in EU Courts and demand an injunction to block the transaction. For procedural infringements, the EU Commission can itself impose periodic penalty payments or fines (up to 1% of the aggregate worldwide revenues of the Parties) where Parties, intentionally or negligently:[33] (i) supply incorrect or misleading information in a submission, certification, or notification or in response to a RFI, or product incomplete books or records during an inspection or refuse to submit to an inspection, or (ii) do not supply information within the required time limit, (iii) fail to rectify within a time limit set by the EU Commission an incorrect, incomplete, or misleading answer, or (iv) break seals affixed by the EU Commission or other authorized persons in the course of inspections. Where the Parties have subsequently satisfied the obligation that the periodic penalty payment intended to enforce, the EU Commission may fix itself the definite amount of the periodic penalty payments at a figure lower than that which would arise under the original decision.

V.       Cooperation Between EU Commission and U.S. Agencies

The list of cases in which the EU Commission and U.S. Agencies have closely cooperated in the past 10 years is long and includes: Oracle/PeopleSoft (2004); Sony/BMG (2004); Johnson & Johnson/Guidant (2005); Panasonic/Sanyo (2009); Cisco/Tandberg (2010); Intel/McAfee (2011); Western Digital/Hitachi (2011); NYSE Euronext/Deutsche Börse (2012); and UTC/Goodrich (2012)[34]. In 2013 specifically, several cases were subject to significant discussions between the EU and U.S. Agencies, e.g., General Electric/Avio, American Airlines/US Airways and Omnicom Publicis. The U.S. /EU Merger Working Group’s ongoing policy dialogue, together with regular informal contacts, allows the EU and U.S. agencies to advance inter-agency cooperation and consistency.

Two documents provide directives and parameters for cooperation between the EU and U.S. regimes.

First, the U.S.-EU Competition Laws Cooperation Agreement (adopted in 1991 and subject to periodic amendment) “promote[s] cooperation and coordination and lessen[s] the possibility or impact of differences between the [U.S./ EU] in the application of their competition laws”.

The Agreement requires each jurisdiction to notify the other when its enforcement activities may affect “important interests” of the other jurisdiction.

As for merger control proceedings, the EU Commission shall give such notifications to the U.S. Agencies once notice of the Phase I investigation is published in the EU Official Journal and if it decides to initiate Phase II proceedings. This enables the views of the U.S. Agencies to be taken into account before a decision is adopted. Conversely, the U.S. Agencies shall notify the Commission if a Second Request is issued and if they decide to file a complaint challenging the transaction. This enables the views of the EU Commission to be taken into account before the entry of a consent decree.

Second, the U.S.-EU Best Practices On Cooperation In Merger Investigations (published in October 2011)[35] aims to enhance coordination on the timing of reviews (e.g., joint conferences and joint interviews with party executives), collection and evaluation of evidence (e.g., discussions about their respective analyses regarding tentative market definitions, assessment of competitive effects, efficiencies, theories of competitive harm, economic theories, and empirical evidence), and communication between the reviewing agencies (especially regarding remedy offers). The Best Practices are a useful framework for cooperation, particularly by indicating critical points in the process where contacts between the respective Agencies could be productive.

Basically, consultations between the U.S./EU Agencies occur: (a) before the U.S. closes its investigation without taking action; (b) before the U.S. issues a Second Request; (c) no later than three weeks following the initiation of a Phase I investigation in the EU; (d) before the EU opens a Phase II investigation or clears the merger without going to Phase II; (e) before the EU closes a Phase II investigation without issuing a Statement of Objections or approximately two weeks before the EU anticipates issuing its SO; (f) before the relevant U.S. DOJ/ FTC section/division investigating the merger makes its case recommendation to the relevant director; and (g) at the commencement of remedies negotiations with the merging parties. Consultations between senior competition officials can also be set up.

U.S. and EU officials may attend certain key events in the other’s investigative process (e.g., the EU’s Oral Hearing and the merging parties’ presentations to the Assistant Attorney General/Director of the Competition Bureau at which the Parties present their arguments prior to the agency’s decision as to whether to take enforcement action). In practical terms, waivers of confidentiality executed by merging Parties are necessary. In this regard, the Best Practices are also of great importance in order to clarify the application of the attorney privilege, which is significantly different in the EU and the U.S. It is accepted that the Parties can exclude from the scope of their waiver evidence given to the EU Commission that is properly identified by them as, and qualifies for, the in-house counsel privilege under U.S. law.[36]

Conclusion

The U.S. Agencies’ role has shifted in the last 10 years. Prior to the “GE/Honeywell Saga”, the U.S. Agencies tended to be the world’s primary antitrust regulator. After GE/Honeywell, the EU Commission became much more active. In practical terms, massive analysis required for EU Form CO at a very early stage now tends to drive initial process.

The landscape is still in flux. Future merger practice will have an even greater global focus, and multinational merging parties will need to be proactive in multiple jurisdictions outside the U.S. and the EU.

The Chinese MOFCOM is taking an increasingly active role. In Baxter Inc./Gambro AB, the transaction was cleared by the EU Commission on 22 July 2013[37] and on 8 August 2013 by the MOFCOM.[38] As for the contemplated transaction, EU and Chinese Agencies required similar structural remedies. However, the U.S. and EU analysis is not always accepted by the MOFCOM. In Seagate/Samsung in 2011, the MOFCOM imposed significant remedies that contrasted with the unconditional approvals granted by the EU[39] and U.S. Agencies.

The cooperation between the Chinese MOFCOM and the U.S. Agencies, on the one hand, and the EU Commission, on the other hand, is being strengthened. Although fairly modest in terms of content, two Memoranda of Understanding were signed by the MOFCOM with the U.S. Agencies and the EU Commission respectively in July 2011[40] and September 2012.[41] Other major jurisdictions are ramping up their merger review regimes, including Brazil[42] and India.[43] Through COMESA, a regional organization, African countries have made a foray into merger control, too.[44] As the world’s competition regimes continue to proliferate, cross-border understanding and cooperation will become increasingly essential to a coherent global merger control scheme.

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If you have any questions concerning these developing issues, please do not hesitate to contact the authors.

Footnotes:

[1]   This material was first published by Thomson Reuters Limited in Sophia A. Vandergrift and Josselin J. Lucas, “The GE/ Honeywell Saga? Ehh, What’s Up Doc? A comparative approach between US and EU merger control proceedings almost 15 years after”, [2014] 35 E.C.L.R. 172 and is reproduced by agreement with the Publishers.

[2]   The views expressed by the authors in this article are their own and not those of the FTC or any individual Commissioner and/or of Paul Hastings LLP or any of its clients. The authors would like to thank Michael Stevens for his advice and assistance with this article.

[3]   European Commission, GE/Honeywell, Case COMP/M.2220, Decision of 3 July 2001.

[4]   Ms. Platt Majoras was appointed to serve as Chairwoman of the Federal Trade Commission in 2004 until she stepped down in 2008.

[5]   Deborah Platt Majoras, “GE-Honeywell: The US Decision, Remarks of Deborah Platt Majoras, Deputy Assistant Attorney General, Antitrust Division, US Department of Justice, Before the Antitrust Law Section, State Bar of Georgia”, November 29, 2001.

[6]   Joaquin Almunia, “EU competition policy, relations with the U.S., and global business”, Georgetown University Law Center, 7th Annual Global Antitrust Enforcement Symposium, Washington, D.C. (USA), 25 September 2013, speech n°13/749.

[7]   European Commission, GE/Avio, Case COMP/ M.6844, Decision of 1 July 2013.

[8]   European Commission, US Airways/American Airlines, Case COMP/ M.6607, Decision of 5 August 2013.

[9]   European Commission, Publicis/Omnicom, Case COMP/M.7023, Decision of 9 January 2014, not yet published. Press release n°IP/14/10. In his speech dated 25 September 2013 delivered in Washington DC (op.cit.), Mr. Almunia noted: “As to the near future, I expect our dialogue to continue – among other cases – on the transactions between the US advertising group Omnicom and its French competitor Publicis; a deal that would create the world’s biggest advertising group”.

[10] Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings.

[11] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.

[12] Premerger Notification Program, FTC, http://www.ftc.gov/enforcement/premerger-notification-program (last viewed Jan. 14, 2014).

[13] Article 8 of Council Regulation (EC) No 139/2004 of 20 January 2004.

[14] European Commission UPS/TNT Express, Case COMP/M.6570, Decision of 30 January 2013, not yet published. Press release n° IP/13/68.

[15] European Commission, Deutsche Börse/NYSE Euronext, Case COMP/M.6166, Decision of 1 February 2012.

[16] European Commission, General Electric/Honeywell, Case COMP/M.2220, Decision of 3 July 2001.

[17] 15 U.S.C. § 53(b) (for the FTC a preliminary injunction is warranted with “a proper showing that… [issuances of a preliminary injunction] would be in the public interest.”). The DOJ must meet the federal courts’ traditional, and perhaps more stringent, standard for a preliminary injunction.

[18] Article 3.1 of Council Regulation (EC) No 139/2004 of 20 January 2004.

[19] European Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 of 20 January 2004, § 54-61.

[20] European Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 of 20 January 2004, § 62-82.

[21] European Commission Staff Working Document, “Towards more effective EU merger control”, 25 June 2013, see especially part II on merger control for the acquisition of non-controlling minority shareholdings (“structural links”).

[22] Joaquin Almunia, “EU competition policy, relations with the US, and global business”, Georgetown University Law Center, 7th Annual Global Antitrust Enforcement Symposium, Washington DC (USA), 25 September 2013, op.cit.

[23] See, e.g., FTC v. St. Luke’s Health Sys., Ltd., 1:13-CV-00116-BLW, (D. Id. Mar. 26, 13); United States v. Twin America, LLC et. al, 12-cv-8989 (S.D.N.Y. Dec. 11, 2012).

[24] Article 1.1 of Council Regulation (EC) No 139/2004 of 20 January 2004.

[25] Article 1.2 of Council Regulation (EC) No 139/2004 of 20 January 2004.

[26] Hart-Scott-Rodino Annual Report, Fiscal Year 2012, Appendix B.

[27] Article 3.4 of Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings.

[28] European Commission, Decision of 10 June 2009 imposing a fine for putting into effect a concentration in breach of Article 7(1) of Council Regulation (EEC) No 4064/89 (Case COMP/M.4994 Electrabel/Compagnie Nationale du Rhône).

[29] General Court of the European Union, Judgment of 12 December 2012, T-332/09, Electrabel v. European Commission. An appeal is pending before the European Court of Justice (C-84/13 P).

[30] US v. Biglari Holdings, Final judgment, 30 May 2013, US District Court for the District of Columbia, Civil Action No. 1:12-cv-01586.

[31] EU Commission statistics available at http://ec.europa.eu/competition/mergers/statistics.pdf.

[32] Article 10 of Council Regulation (EC) No 139/2004 of 20 January 2004.

[33] Article 14 of Council Regulation (EC) No 139/2004 of 20 January 2004.

[34] European Commission, UTC/Goodrich, Case COMP/ M.6410, Decision of 26 July 2012.

[35] US-EU Merger Working Group, Best practices on cooperation in merger investigations, 14 October 2011, and FAQs on the US-EU Merger Working Group’s Best practices on cooperation in merger investigations, available on the EU Commission’ website: http://ec.europa.eu/competition/mergers/legislation/best_practices_2011_en.pdf

[36] US-EU Merger Working Group, Best practices on cooperation in merger investigations, 14 October 2011, footnote n°10 and FAQs on the US-EU Merger Working Group’s Best practices on cooperation in merger investigations, §11.

[37] European Commission, Baxter International/Gambro, Case COMP/ M.6851, Decision of 22 July 2013.

[38] MOFCOM Announcement No. 58 of 2013 on Approval of Decisions on Anti-monopoly Review Against Concentration of Undertakings in the Acquisition of Gambro AB by Baxter International Inc. with Additional Restrictive Conditions.

[39] European Commission, Seagate/HDD Business of Samsung, Case COMP/ M.6214, Decision of 19 October 2011.

[40] Memorandum of Understanding on Antitrust and Antimonopoly Cooperation Between the US Department of Justice and Federal Trade Commission and the People’s Republic of China National Development and Reform Commission, Ministry of Commerce and State Administration for Industry and Commerce, 27 July 2011.

[41] Memorandum of Understanding on Cooperation in the area of anti-monopoly law between the EU Commission (Directorate General for Competition) and the National Development and Reform Commission and the State Administration for Industry and Commerce of The People’s Republic of China, 20 September 2012.

[42] A memorandum of understanding was signed on 8 October 2009 between the Directorate General for Competition of the EU Commission and the Brazilian Authorities. An agreement between the US and Brazilian Governments regarding cooperation between their competition authorities in the enforcement of their competition laws were signed on 26 October 1999.

[43] Memoranda of understanding were signed by the Competition Commission of India with the US Agencies on 27 September 2012 and, separately, with the Directorate General for Competition of the EU Commission on 21 November 2013. See Joaquin Almunia, “Competition, innovation and growth: an EU perspective on the challenges ahead”, Third BRICS International Competition Conference, New Delhi, 21 November 2013, speech n°13/958: “Only a few years ago, our dialogue was limited to some authorities, such as the FTC and the DOJ from the US”.

[44] The Common Market for Eastern and Southern Africa (COMESA) Competition Commission, http://www.comesacompetition.org (last viewed Jan. 14, 2014).