Unrest in the European Commission: The Changing Landscape and Politics of International Mergers for United States Companies

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I. INTRODUCTION

U.S. companies planning significant mergers now have more to worry about than just the U.S. Justice Department and the Federal Trade Commission. (1) The European Commission (EC) asserts the right to investigate any merger involving a company with a significant presence in EU markets. (2) There is growing concern among companies, particularly in the United States, about the accountability of the EC's merger review procedure, the changing environment of the merger review process, and the opportunity given to companies to present their case.

Increasingly, companies face overlapping authority from the United States' two trust-busting agencies: the Justice Department and the Federal Trade Commission, from the EC, and even from individual U.S. states. (3) Today, some eighty countries have competition laws and more than half of these laws were enacted in the last ten years. (4) Many additional countries are currently drafting competition laws. (5) Any company contemplating a merger of any significance will be forced to pay a small fortune on antitrust attorneys. (6) Given the uncertain outlook for global economies and markets, companies may become more cautious about launching future bids, particularly when there may be regulatory problems. (7)

In September of 1999 "Super Mario" (8) Monti was appointed the European commissioner in charge of competition policy. (9) In the year following Monti's appointment, the EC struck down three mergers, though it blocked only ten in the prior decade. (10) Making his presence felt immediately, Monti blocked a deal between British package-holiday operators in his first week at work. (11) In June 2000, Monti upstaged U.S. antitrust departments by rejecting WorldCom, Inc.'s $115 billion merger with Sprint Corp. one day before the U.S. Justice Department filed suit to block the deal. (12) It was the first time the EC had vetoed a deal involving two non-European companies. (13) Just over one year later, Monti again made headlines as the EC blocked General Electric Co.'s proposed $41 billion takeover of Honeywell International, Inc. (14)

Although the EC approved the $106 billion merger of Time Warner, Inc. and America Online, Inc. in October 2000, Time Warner was forced to discontinue its attempt to merge with EMI Group PLC, a move that would have joined two of the world's five biggest music companies. (15) Additionally, America Online was forced to cut ties with Bertelsmann AG, a German media conglomerate, and Vivendi SA to stop the merged company from dominating online music delivery in Europe. (16)

The EC's increasing action has raised eyebrows in the United States. On October 9, 2000, the EC dismissed suggestions from two U.S. senators (17) that its merger review process discriminated against U.S. companies in favor of European firms. (18) The senators explained that they were troubled by the possibility that the EC's analysis and outcomes have been influenced in part by "pan-European protectionism rather than by sound competition policy." (19) The senators cautioned the commission to steer clear of "protectionist sentiments." (20) Less than a week after the date of the letter, on October 13, 2000, the EC approved France's Vivendi SA's $34 billion merger with Seagram Co. of Canada. (21) That deal was cleared with apparent ease, as opposed to the five-month probe by the EC concerning America Online's merger with Time Warner. (22)

In 1990, when the EC began to regulate mergers, of the twelve cases it considered, five involved U.S. companies. (23) By 1999, 129 U.S. companies were involved in the 292 mergers reviewed by the EC. (24) The pace of European mergers and acquisitions slowed in 2000 (due in part to a tougher regulatory climate). (25) However, the EC's policies must remain at the forefront of any merger discussions. (26)

Part II of this Comment discusses and analyzes how protectionism guided the development of the European Union and the formation of the European Merger Regulation. …