Originally published in Global Competition Review

I. Introduction

Antitrust enforcement agencies in the United States and the European Union enjoy the strongest bilateral relationship in the competition law arena today. This relationship is in many ways a model for cooperation, and regulators on both sides of the Atlantic Ocean take seriously their collective leadership of the expanding community of credible antitrust regimes throughout the world. Effective formal agreements are in place between the two jurisdictions, but these agreements do not define the close collaboration among competition law officials. Rather, what makes the relationship effective is the "quiet and business-like cooperation" between the European Competition Directorate and its counterpart agencies in the United States — the Federal Trade Commission and the Department of Justice Antitrust Division.1 As the new Chairman of the United States Federal Trade Commission recently noted, "on the remarkable number of reforms that the E.U. has undertaken … we have provided input when requested to do so, and this may not mean necessarily taking ultimate positions on what is good or bad, but it may mean just talking things through and relaying our own experiences."2 There are practical limits to the collegial workings of transatlantic cooperation, however, and the U.S. and E.U. antitrust authorities face new challenges to their increasingly common competition policy goals.

II. The Legal Framework for U.S.-E.U. Cooperation

The United States and the European Communities have entered into two agreements controlling cooperation on antitrust matters in which the governments' interests overlap. The first agreement, entered in 1991, effected a mutual obligation to notify antitrust matters to the extent that these cases concern the important interests of the other authority, and to exchange information on general matters relating to the implementation of competition rules.3 The 1991 Agreement incorporates the traditional concept of comity — each party agreed to take into account the important interests of the other in its competition enforcement actions. The 1991 Agreement also contains a "positive comity" procedure under which either party may request the other to enforce its competition laws to address anticompetitive conduct in its territory that impacts the important interests of the requesting party. The 1991 Agreement contemplates regular consultation on broad competition policy matters and enforcement activities. The U.S. and European Communities signed a second antitrust cooperation agreement in 1998.4 The 1998 Agreement, which does not apply to merger reviews, clarifies how and when positive comity should be invoked.

In 2002, the antitrust enforcement authorities in the E.U. and U.S. jointly issued and adopted a protocol for reviewing mergers subject to review in both jurisdictions. These merger "Best Practices" set out a structured basis for cooperative merger control, and encouraged merging parties to avail themselves of opportunities for coordinated review by facilitating parallel timing in multiple jurisdictions and information sharing between investigating agencies.5 The protocols also designated appropriate points in the course of a merger investigation when it is appropriate and helpful for enforcement agency officials to confer at a high level.6

Most recently, the U.S. and the European Communities entered an Agreement on Mutual Legal Assistance.7 This agreement impacts cooperation between the United States and the various Member States, rather than with the European antitrust institutions, themselves. Furthermore, the agreement applies only to criminal matters, and so will not impact antitrust cooperation as violations of articles 81 and 82 of the E.C. Treaty are not criminal offenses.

III. Why Cooperate and What Has Cooperation Accomplished?

A. Effective Cartel Enforcement

U.S. and E.U. antitrust enforcement authorities remain staunchly committed to cooperate in detecting and punishing international cartel activities — called variously by enforcers on both sides of the Atlantic the "supreme evil of antitrust"8 and the "scourge of the economy."9 Detection of highly lucrative cartel activity remains the unique charge of government enforcement, and cooperation among competition authorities is vital to this end. Cooperation and convergence in cartel enforcement provide powerful incentives for participants to avail themselves of effective amnesty programs and to expose illegal activity in all jurisdictions where they have exposure.

The most profound boost to cooperation in cartel enforcement resulted from collaboration between the U.S. and the E.U. officials on convergence of the two jurisdictions' corporate amnesty programs. Based in part on shared insights and experiences with U.S. antitrust authorities in fighting the increasing "internationalisation" of cartel activity, the European Commission revised its amnesty program in 2002 to provide more transparency for applicants and less discretion for enforcers in administering the program.10 The Commission's revised amnesty program now substantially mirrors the U.S. Department of Justice Corporate Leniency Program.11

According to U.S. antitrust officials, the Commission's revised program "has led to a surge in parallel amnesty applications to both the Commission and the Division."12 The level of cooperation has similarly swelled as a result of the revised program. The U.S. and European authorities, often in conjunction with other enforcement agencies around the globe, have conducted near simultaneous execution of search warrants and other inspections. In 2003 the U.S. and the E.U. conducted a multilateral investigation with antitrust authorities in Japan and Canada regarding alleged cartel activities in the plastics additives industry.13 In May 2004, the U.S. and the E.U. made known their joint investigations of alleged price fixing among leading European paper and pulp manufacturers, which authorities in Europe based on the confession of a participant in the alleged cartel activities.14

In spite of the remarkable level of coordination that antitrust enforcers in the U.S. and the E.U. have achieved in their cartel enforcement efforts, practical impediments to cooperation remain. Antitrust authorities are more limited in their willingness and ability to share information in this arena than in the merger control context, due primarily to local laws prohibiting the sharing of information obtained in the course of investigations. The U.S. and the E.U. both maintain policies of not disclosing an amnesty applicant's identity or any information obtained from the applicant to foreign authorities without the applicant's consent.15 Policy convergence has begun to break down these barriers as well, however, and information sharing to the extent it is permitted happens routinely. In fact, bolstered by the certainty of receiving leniency in multiple jurisdictions, amnesty applicants recently have waived confidentiality protections in the context of transatlantic investigations, permitting the authorities to share information to the benefit of effective law enforcement.

B. Effective Merger Control

Coordination between antitrust authorities in the U.S. and the E.U. predates the formal agreements on antitrust cooperation between the two governments and continues to grow, in many ways outpacing the agreements, in both practical and policy dimensions.16 Since the agencies jointly issued their Best Practices On Cooperation In Merger Investigations in 2002, antitrust enforcement authorities in the U.S. and in the E.U. have solidified their best practices protocols and officials characterize their collaborations pursuant to these protocols as "frequent and intense."17 One recent dramatic example of the level of coordination achieved between the U.S. and E.U. is the G.E.-Instrumentarium merger involving medical monitoring devices. The U.S. Department of Justice entered a consent agreement requiring the merging parties to divest certain businesses. In its consent agreement, the U.S. Department of Justice incorporated the commitments that the merging parties had entered into with the European Commission in 2003, expressly committed to facilitate the appointment of a trustee acceptable to the European Commission to effect the required divestiture, and pledged to withhold its approval of a buyer for those assets if the Commission did not concur.18 Similarly, the European Commission collaborated closely with the Federal Trade Commission on merger remedies in the Pfizer-Pharmacia merger and others in 2003.19

Collaboration regularly occurs not only on specific merger cases, but also on the policy front where the agencies express shared goals of implementing economically sound and transparent policies, as well as consistent (or at least not incongruous) merger remedies. Most important to fruitful collaboration between U.S. and E.U. antitrust regulators is the new European Merger Regulation, which entered into force on May 1, 2004 and the Commission's Guidelines describing the analytical approach to assessing the likely competitive impact of horizontal mergers.20 Under the Guidelines, "mergers and acquisition will only be unlawful to the extent that they enhance the market power of the companies in a manner which is likely to have adverse consequences for consumers, notably in the form of higher prices, poorer quality products, or reduced choice." The new legislation and guidance resonates with the U.S. agencies' Horizontal Merger Guidelines, focusing on the competitive effects and potential efficiencies of mergers under review without regard to whether the merger will create or strengthen a dominant position.21 "Put simply, the EU and US agree on what competition policy should be all about. We share a common fundamental vision of the role and limitations of public intervention. We both agree that the ultimate purpose of our respective intervention in the market-place should be to ensure that the consumer is not harmed."22 U.S. antitrust officials have lauded their European counterparts' efforts to reconcile divergent approaches to merger control. Similarly, European regulators have heralded changes in U.S. enforcement policy aimed at facilitating convergence and increasing the transparency of its merger review process — efforts that include increasingly frequent statements by U.S. antitrust agencies at the closing of merger investigations detailing their reasons for not challenging a particular merger.23

C. Principled Intellectual Property Law Reform

The success of merger collaborations has generated collaborative policy initiatives in the civil non-merger arena as well. Over the past year, the U.S. and E.U. have coordinated through an Intellectual Property Working Group focusing on patent pooling and other intersections of intellectual property law and competition law. The European Commission consulted with its U.S. counterparts prior to adopting new Technology Transfer Regulation and Guidelines, which embrace an effects-based model and move the E.U. significantly toward further convergence with the U.S. in the antitrust analysis of intellectual property licensing arrangements.24 During 2003 antitrust officials held discussions on multilateral licensing and standard setting organizations. Nonetheless, the area of intellectual property law has continued potential for divergence between the U.S. and the E.U. Significant gaps remain in the areas of compulsory licensing and the general understanding of the underlying economic theories of competitive harm applied to licensing restrictions.25

D. The Bigger Picture — Guiding Principles for the Developing World

As the international community of antitrust authorities has swelled in recent years, the differences between the U.S. and E.U. in competition law enforcement have diminished in importance. The shared goals of encouraging a truly global network of competition authorities to preserve competition in an increasingly global economy in many ways overshadow the procedural and the substantive differences in U.S. and E.U. competition law. According to Commissioner Monti, "[T]he EU and US carry comparable global weight in the area of competition law enforcement, especially in the area of merger control.… There is much to be gained from the EU and US focusing on finding common policy ground in relation to issues of common global importance. Antitrust policy, and merger control policy in particular, is a shining example of that — and I believe that the benefits are being felt by both of our economies in this ever more inter-dependent world."26 Both the U.S. and the E.U. have long subscribed to the OECD recommendations concerning cooperation between member countries on anticompetitive practices affecting international trade.27 More recently, antitrust officials both in the U.S. and in Europe have committed significant resources to the International Competition Network (ICN) and its mission of "facilitat[ing] the establishment of credible competition authorities in developing and transition countries."28

IV. Remaining Obstacles

A. Substantive Divergence

Despite the success, cooperation in competition matters still encounters several obstacles. In spite of recent progress, there remain significant divergences in substantive laws, including in matters such as abuse of dominance, the approach to merger efficiencies and remedies, and the licensing of intellectual property. In particular, the failure of the merger between General Electric and Honeywell, despite the efforts of cooperation made by both the U.S. and the E.U. in its assessment, led to a period of disagreement between the authorities on both sides of the Atlantic. Although the case was exceptional (cooperation across the Atlantic has indeed been moving along in a satisfactory manner), conflicting messages were proliferated, mainly with regard to the aims of merger control and the very values to be protected by competition policy. Assistant Attorney General Hewitt Pate recently suggested that the U.S. espouses a more Darwinian view of the competitive process, and that the E.U. places greater emphasis on requiring that dominant firms limit themselves to gentlemanly competition.29 Commissioner Monti replied that the E.U. is aiming at safeguarding conditions of Darwinian competition provided it is Darwinian competition on the merit; if competition is Darwinian but through means other than the merit then competition authorities should be draconian.30

B. Procedural Disparities

Disparate procedural laws also can lead to significant divergence and can stifle effective cooperation. Take for instance the timing of merger review — parties to an international merger sometimes prefer to file before the European Commission based on the greater transparency of deadlines. In spite of encouragement by the authorities to facilitate parallel timing of merger review, merging parties often wait until they have a green light in the E.U. before triggering the review process in the U.S. The possibility of facing criminal penalties for cartel activities in the U.S. when the same conduct constitutes administrative infringement in the E.U. similarly impedes coordination of competition law enforcement, even when the goals of the U.S. and the E.U. are the same. Disparate venues also produce divergence. In the U.S., antitrust enforcement, particularly merger control, is done through a court based system where the agencies may settle with the defendant and have the settlement approved by the court. By contrast, in the E.U. administratively based system, until the reform of May 2004, it was exclusively for the Commission to negotiate and decide its cases.31 This divergence may lead and has indeed led to very different outcomes (i.e., the Microsoft case).32

In addition to these specific divergences, other more general issues greatly affect the outcome of cooperation among the agencies in transatlantic enforcement of competition laws. Of these the most important is confidentiality. As it has been said, if you can't get the facts then you don't have a case.33 Aside from this fundamental observation, effective cooperation rests on the agencies' ability to discuss remedies in specific cases, to exchange specific documents disclosing anti-competitive behavior, and to disclose enforcement decisions when such decisions are not yet public. However, local provisions very often prevent the agencies from exchanging information classified as business secret, or information that has been obtained from a leniency applicant or from one of the parties in the course of an antitrust investigation. In the absence of a formal legal mechanism for sharing these types of information, the agencies may exchange this information only so far as the private parties agree to it, usually by means of a waiver. While communications are now common among competition officials at every level, the European Commission in particular follows very strictly the confidentiality requirements of Community law — telephone contacts with the U.S. agencies normally are conducted in the presence of at least two officials from the Competition Directorate so that they can monitor on one another and ensure that the confidentiality rules are fully respected.34

With no legal reform in sight, the agencies strive to obtain waivers from private parties, but frequently are hindered by the specter of exposure to private civil damages. Documents given by the applicant to the authorities have in some cases been used by plaintiffs in private civil litigation before U.S. or Member State courts, a fact that dissuades potential applicants from exposing illegal activity under the leniency programs.35 So far, the agencies have achieved little success in impeding the use of such information in other actions,36 which has resulted in the European Commission accepting oral applications.37

C. The Challenge of Decentralization

The European Union has embarked on a decentralization process, which will shift competition cases to 25 different national authorities and away from the central European antitrust institutions. The decentralization of E.U. competition law likely will be a new source of divergence in competition matters. Existing agreements between the U.S. and each Member State will be of increasing importance, since the 1991 and 1998 cooperation agreements between the E.U. and the U.S. are not binding on national jurisdictions. For example, decentralization may bring new problems in the area of international cartel enforcement as only 14 out of 25 Member States have a leniency policy. The Agreement on Mutual Legal Assistance between the European Union and the United States may come to play an important role in the success of cooperation in competition matters, but will only be of immediate help to those jurisdictions in which the conduct constitutes a criminal violation.38

In this context, potential applicants for amnesty face increased exposure in the context of private litigation — with the increase of private actions for damages, the value of business information for plaintiffs will undoubtedly rise. So far, Commissioner Monti has declared that one of the goals of the Competition Directorate in the newly decentralized system will be to promote private litigation for damages. The need to take into account 25 different legal systems covering the protection of confidential information will add to these difficulties.

V. Prospects for Improved Cooperation — Toward a Second Generation Agreement?

In spite of the successes, many believe that the U.S. and the E.U. have reached the limit of how effectively they can use the existing legal framework to foster convergence and cooperation.39 Some have claimed that the only way to enhance effective bilateral cooperation in the future is through "second generation agreements" by which further information, antitrust evidence and assistance could be obtained from foreign antitrust authorities. In this regard, the International Antitrust Enforcement Assistance Act "IAEAA" enables the Attorney General of the U.S. and the Federal Trade Commission to sign assistance agreements with third countries. The only such agreement signed to date is between the U.S. and Australia.40 Although European authorities initially rejected such an agreement, some have suggested recently that it is time to take such a step between the E.U. and the U.S.41 In fact, the European Commission's most recent Report on Competition Policy reflects its intention to explore the possibility of initiating negotiations on a second generation agreement to allow the exchange of legally protected information between European antitrust authorities and the U.S.42 Furthermore, during the E.U.-U.S. summit in Ireland in June 2004, enforcement authorities expressed a clear commitment to "pursue, and build on, bilateral cooperation in the immediate term based on the EC- US Agreement of 1991. We will examine the options for deepening cooperation on competition matters, including the possibility of a further agreement."43 More specific input is expected during the E.U.-U.S. meeting on antitrust, which will be held in the second half of 2004. The extent to which political issues (such as the end of Mr. Monti's term as a Competition Commissioner or the outcome of the 2004 presidential election in the U.S.) will affect the advances to take place in such meeting remain to be seen.

VI. Conclusion

The most noteworthy action towards convergence that has taken place in the past two years has been the intensive review of substantive and procedural competition law undertaken in the European Union. To date the European Union has a revised leniency policy, a new set of guidelines on horizontal mergers, a new policy on technology transfer agreements, a brand new procedural regulation on articles 81 and 82 of the Treaty, a new substantive test for mergers, and a new economically-based line of analysis (represented by the appointment of a Chief Competition Economist). All these changes are significant steps towards convergence with the U.S., and their effects will soon be felt.

The E.U. now has many important internal goals to achieve such as enlargement and the functioning of its own unified and decentralized system (including the difficult task to have a unified and coordinated competition enforcement by all national authorities and judicial instances, through the European Competition Network), plus the revision of the policy on several important issues of substantive law. However, the effort made in the field of national E.U. coordination and cooperation may help define issues of bilateral cooperation between the U.S. and the E.U. and overcome difficulties, and may be even pave the way to extended cooperation through "second generation" agreements.

Footnotes

1. Mario Monti, "Convergence in EU-US antitrust policy regarding mergers and acquisitions: an EU perspective," at UCLA Law First Annual Inst. on US and EU Antitrust Aspects of Mergers and Acquisitions, Los Angeles (Feb. 28, 2004) available at http://europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/04/107&format=HTML&aged=0&language=EN&guiLanguage=enMonti.

2. Deborah Platt Majoras, Remarks at the British Institute of International Comparative Law (July 2004).

3. Agreement between the Government of the United States of America and the Commission of the European Communities regarding the application of their competition laws, Official Journal L 95 (Apr. 27, 1995), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,504.

4. Agreement between the European Communities and the Government of the United States of America on the application of positive comity principles in the enforcement of their competition laws, Official Journal L 173 (June 18, 1998), reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,504A.

5. US-EU Merger Working Group, "Best Practices On Cooperation In Merger Investigations" (Oct. 30, 2002) available at http://europa.eu.int/comm/competition/mergers/others/eu_us.pdf.

6. Id.

7. Agreement on Mutual Legal Assistance U.S. - E.U., 2003 Official Journal (L 181) 34 (19/07/2003).

8. R. Hewitt Pate, "Antitrust in a Transatlantic Context - - from the Cicada's Perspective," Address at the Antitrust in a Transatlantic Context Conference (June 7, 2004), available at http://www.usdoj.gov/atr/public/speeches/203973.htm. (citing Verizon Communications, Inc. v. Trinko, L.L.P., 124 S. Ct. 872 (2004)).

9. Commission’s XXXIIIrd Report on Competition Policy, SEC (2004) 658 final (June 4, 2004), available at http://www.europa.eu.int/comm/competition/annual_reports/2003/draft_en.pdf .

10. Commission Notice on Immunity from Fines and Reduction of Fines in Cartel Cases, 2002 Official Journal (C 45) 3 (19/02/2002).

11. United States Dep't of Justice, Antitrust Div., Corporate Leniency Policy, reprinted in 4 Trade Reg. Rep. (CCH) ¶ 13,113 (Aug 10, 1993).

12. Pate, "Antitrust in a Transatlantic Context," supra.

13. "Price Fixing: JFTC Cracks Down on Chemical Cartel in First Cooperative Probe With America, EU," Antitrust & Trade Reg. Daily (BNA) (Dec. 15, 2003); Scott D. Hammond, Dir. Criminal Enforcement U.S. Dep't of Justice Antitrust Div., "Beating Cartels at Their Own Game - - Sharing Information in the Fight Against Cartels," presentation to the Inaugural Symposium on Competition Policy, Competition Policy Research Center Fair Trade Comm'n of Japan (Nov. 20, 2003), available at http://www.usdoj.gov/atr/public/speeches/201614.htm.

14. "Price Fixing: EC Raids European Firms Suspected of Cartel Action In Paper-Pulp Industry," Antitrust & Trade Reg. Daily (BNA) (May 26, 2004).

15. James M. Griffin, Deputy Ass't Attorney General U.S. Dep't of Justice Antitrust Div., "The Modern Leniency Program After Ten Years: A Summary Overview of the Antitrust Division's Criminal Enforcement Program," presentation to the American Bar Ass'n Section of Antitrust Law Annual Meeting (Aug 12, 2003), available at http://www.usdoj.gov/atr/public/speeches/201477.htm.

16. For a discussion of the history of U.S.-E.U. coordination on merger policy, see American Bar Ass’n Section of Antitrust Law, International Antitrust Cooperation Handbook 141-55 (2004).

17. XXXIIIrd Report on Competition Policy, SEC (2004) 658 final ¶ 681.

18. United States v. Gen. Elec. Co., Civ. No. 03-1923 (D.D.C.) (final judgment filed Feb. 23, 2004).

19. XXXIIIrd Report on Competition Policy, ¶ 682.

20. Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the EC Merger Regulation), Official Journal (L 24) 29/01/2004, at 1-22; Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings Official Journal (C 31) 05/02/2004, at 5-18.

21. XXXIIIrd Report on Competition Policy, 658 final ¶ 218.

22. Mario Monti, "Convergence in EU-US Antitrust Policy Regarding Mergers and Acquisitions: An EU Perspective," supra (Feb 28, 2004).

23. Id.

24. Commission Regulation (EC) No. 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements. Official Journal (L 123) 27/04/2004, at 11-17; Commission Notice, Guidelines on the Application of Article 81 of the E.C. Treaty to Technology Transfer Agreements, Official Journal (C 101) 27/04/2004, at 2-42, available at http://europa.eu.int/eur-/ex/en/search/search_oj.html.

25. Makan Delrahim, Deputy Ass’t Attorney General, Antitrust Division, U.S. Dep’t of Justice, "US and EU Approaches to the Antitrust Analysis of Intellectual Property Licensing: Observations from the Enforcement Perspective," presentation to the American Bar Ass’n Section of Antitrust Law Annual Meeting (Apr. 1, 2004), available at http://www.usdoj.gov/atr/public/speeches/203228.htm.

26. Monti, "Convergence in EU-US Antitrust Policy," supra.

27. OECD Council Revised Recommendation C (95) 130/Final Concerning Cooperation Between Member Countries on Anticompetitive Practices Affecting International Trade (Sept. 21, 1995), reprinted in 35 I.L.M. 1313 (1996); OECD Council Recommendation C (98) 35/Final Concerning Effective Action Against Hard Core Cartels (May 13, 1998), available at http://www.usdoj.gov.atr/public/international/docs/hard_core.htm.

28. XXXIIIrd Report on Competition Policy ¶ 706.

29. Using Judge Posner’s original expression, "Antitrust in a Transatlantic Context", Brussels, Belgium, June 7, 2004.

30. Comments by Mario Monti to the speech given by Hewitt Pate, Brussels, June 7, 2004. Speech available at http://www.eurpa.eu.int/comm/competition/speeches/index2004.html.

31. As of May 2004, national judges and competition authorities may enforce European competition law under certain conditions and circumstances.

32. While the DOJ, nine states and Microsoft reached a settlement after long and persistent encouragement by the district courts, which required the appointment of two different mediators,(Judge Posner and Eric D. Green), in the E.U. the European Commission and Microsoft were unable to reach a settlement, and the case ended with the imposition of a fine and conduct remedies.

33. Anne K. Bingaman, "International Cooperation and the Future of U.S. Interest Enforcement," presentation to American Law Institute Annual Meeting (May 16, 1996), available at http://www.usdoj.gov/atr/public/speeches/96-05-16.htm.

34. See Commission Report to the Council and the European Parliament on the application of the Agreement between the European Communities and the Government of the United States of America regarding the application of their competition laws, Com(96)479 final, Oct. 8, 1996.

35. Phillip Lowe, DG-Comp. Director, has pointed this out with regard to E.U. cases in "What's the future for cartel enforcement," Brussels, Feb. 11, 2003.

36. The problem has appeared quite recently with U.S. courts' motions to compel the defendants to submit the written corporate statement that they had provided the European Commission for the purpose of their leniency application; cases like Vitamins, Choline Chloride, and Methionine are the most recent examples of this strategy. Although the Commission filed briefs in every case, it was only in the last case that the court agreed to not grant a motion to compel. In the other cases, the motions were granted. 2003/2/EC: Commission Decision of Nov. 21, 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 - Vitamins), Official Journal (L 006), 10/01/2003; 003/674/EC: Commission decision Jul. 2, 2002 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case C.37.519 - Methionine), Official Journal (L 255) 8/10/03.

37. Oliver Guersent, Head of Unit, Competition Directorate, E.U. Commission, at Fordham Antitrust, International Cartels Roundtable, Oct. 2003.

38. Official Journal (L 181) 19/07/2003 at 0034-42.

39. Oliver Guersent, supra.

40. Agreement for Mutual Antitrust Enforcement Assistance between the U.S. and Australia, Apr. 27, 1999.

41. The US delegation presented the IAEAA to the European Commission in 1996. The Commission decided then that it was first necessary to establish working groups in order to try to approximate their regulations and principles and thus increase bilateral cooperation. Some time later, the report of the team formed by the former Competition Commissioner, Karel Van Miert suggested that the U.S.- E.U. Agreement should be broadened to allow the exchange of confidential information and use of compulsory process in behalf of the other party, along the lines authorised by the IAEAA. Commissioner Monti has suggested so several times. And Oliver Guersent (Head of Unit, Competition Directorate) has agreed that although there is no question of that at the moment, sooner or later the U.S. and the E.U. will have to think about that (International Cartel Roundtable, Fordham, Oct. 2003).

42. XXXIIIrd Report on Competition Policy ¶ 732.

43. An overview of the E.U.-U.S. summit can be found at http://www.europ.eu.int/comm/externalrelations/us/intro/index.htm.

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