5TH GLOBAL MERGER CONTROL CONFERENCE

Interview with Kaarli Eichhorn

(Global Executive Counsel – Competition Law & Policy, General Electric)

Kaarli Eichhorn (General Electric) has been interviewed by Alec Burnside (Dechert) in anticipation of the 5th edition of the Global Merger Control conference organised by Concurrences review in partnership with Dechert, Compass Lexecon and MAPP in Paris on Friday 8 December.

To read the full program and register, click here.

Does the European Commission’s approach to assessing innovation effects in recent cases such as Dow/DuPont increase the risk of regulatory divergence between the EU and the US?

In principle, assessing innovation effects in mergers is nothing new in the U.S. or the EU. Convergence between the U.S. and the EU should remain a key priority. It’s vital that cross-border transactions involving these two closely connected economies are subject to investigations by their respective competition agencies where theories of harm and outcomes (including remedies) are not conflicting.

Do you believe that the EU merger control process is need of reform since it has become too burdensome for the notifying parties? This includes a significant increase in the scope and scale of requests for data and internal documents as well as protracted pre-notification discussions due to the EC front-loading substantial parts of its analyses.

All competition agencies should subject their procedures to regular scrutiny to see where they can improve, cut unnecessary requirements and focus efforts on important aspects of their review. The ECN, ICN and OECD are good examples of fora where best practices can be shared amongst agencies and practitioners should also continue to share their ‘user’ perspective to make the merger control process work better and better. The EC does look at its procedures on a regular basis with this eye, and that’s important. Both the EC and notifying parties need to consider how pre-notification procedures can be done more efficiently than today. The length of these discussions has increased significantly on account of the expanded data requirements and analyses that the EC today conducts in many cases and where the EUMR deadlines for phase I and phase II aren’t sufficient. One other important area is when the EC exercises jurisdiction in the first place, something the EC has acknowledged is an issue, given that the vast majority of transactions are unproblematic. A specific issue that needs to be addressed by the EC and the NCAs in Europe is the exercise of jurisdiction over non-EEA joint ventures; this has resulted in similar requirements elsewhere and is unnecessary at the same time as it leads to tremendous cost and delay for transactions.

In order to ensure that counterfactual analyses in merger reviews are more balanced, would it be appropriate for the European Commission adopt a more lenient evidentiary standard for establishing efficiencies by abandoning the three-pronged test and bringing it into line with the standard of proof for establishing competitive harm (i.e., a balance of probabilities)?

Efficiencies must under the current three-pronged test meet a high standard of verification and there are indeed very limited examples of where efficiency claims have been accepted, which may suggest that there is an imbalance. Importantly, also, there may also be a feeling that efficiencies are increasingly subjected to scrutiny as themselves potentially causing anti-competitive effects (e.g. R&D synergies vs loss of innovation); this is something merging companies and their advisors need to consider carefully, articulate clearly and engage in open dialogue with the EC and other agencies.