ICN Merger Workshop – Brussels, 24 September 2015
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Good Morning Ladies and Gentlemen,
It is my great pleasure to welcome you all to the 11th ICN Merger Working Group Workshop which the European Commission is proud to host here in Brussels.
This workshop brings together more than 200 competition enforcers from about 50 different jurisdictions in all continents.
This room represents our global community of competition enforcers and non-governmental advisers with hands-on expertise in merger control.
One of the most pressing challenges for politicians around the world is how to respond to globalisation. Many of our citizens often worry about globalisation and they ask their politicians how they intend to respond to it.
As a politician myself, I have heard this question many times.
There is a real challenge: Our democracies are national whereas the markets and companies become increasingly global. How can we make sure that our systems both remain responsive to the wishes of the national electorates and effective vis a vis the many global challenges?
Clearly, we have to cooperate globally on a wide variety of issues. So a small, but important, part of the answer to our citizens' concerns, are found in this very room.
Meetings like this workshop are important. Thanks to them, we can share the experience gained by each member of the ICN and learn from each other.
More important still, we can get to know one another and engage in the debate. And this is just what is needed to tighten the links among our different agencies so that we can become better enforcers.25 years of EU Merger Control
I will come back to the need for global cooperation. First, let me recall that EU merger policy turns 25 this year.
So, this workshop is also something of a celebration for us.
Looking at what has been achieved, I think there is reason to celebrate. Europe’s merger review system has already come a long way since its inception.
The Merger Regulation was a major step forward for competition enforcement in Europe and gave a boost to our internal market.
The original goal was twofold:
On the one hand, mergers must not weaken competitive conditions on the markets after they took effect.
On the other, a centralised review of proposed mergers at EU-level would create a one-stop-shop for the entire internal market.
The system has evolved over the years. For one thing, we have made the procedures more business-friendly.
We have taken care that our review is predictable, transparent, and in full compliance with due process.
We have also made sure that our remedies are fit to address the problems our investigations identify and that enforcement action is rooted in economic theory and based on solid factual evidence.
I only took over as Competition Commissioner less than a year ago. So while I am proud of our merger control system, I cannot really claim any credit for it.
Learning by doing
Looking at the evolution over the first 25 years, the most striking element has been the ability of the system to develop: To learn from accumulated experience and find ways to improve itself.
The world around us changes at rapid pace, and if we want to stay relevant, we also need to be ready to move with it. So as Competition Commissioner, one of my most important objectives is to preserve our ability to constantly finding ways to improve.
I hope we all share this objective. And that this conference will provide all of you the opportunity to both give and get inspiration.
Indifference to nationality
Another important objective is to keep merger control solidly anchored in the rule of law. Over the last 25 years our cases have been tested before the Courts. Most of our decisions were upheld. Sometimes we have lost. That is exactly how it should be.
I am convinced that a strong international community of competition enforcers have to be based on a set of shared core values. And I am sure you agree with me that they should comprise impartial application of the rule of law to all companies.
Each decision has to be based on a careful analysis of facts. All the relevant facts and nothing but the relevant facts.
Let me mention that one of the facts that are not relevant, is where the merging companies come from. It does not matter whether the companies we investigate happen to be headquartered in Europe or elsewhere.
The EU is open for business to any entrepreneur that sees opportunities for growth here. We welcome investments from outside the EU; just keep in mind that any business with operations in the EU must comply with European competition rules.ICN and International Merger Enforcement Cooperation
Now I will move to the need for global cooperation on merger control, which is a necessity for two main reasons.
On the one hand, the number of countries and jurisdictions with competition enforcement systems – including merger control – keeps growing. At present we have more than 100 jurisdictions worldwide.
On the other hand, a growing number of mergers and acquisitions are international in character. The result is that more and more companies must get the green light in several jurisdictions.
A couple of figures can give us a sense of the global expansion of competition regimes. Today about 85% of the world’s population live in a place with some form of competition policy enforcement. In 1990 the figure was less than 25%.
This is good news, of course, because many more people know that a competition watchdog will protect their interests if companies misbehave.
But it is also a responsibility for us enforcers. Clearly, we have to make an effort and read from the same sheet of music to make the system work and meet the legitimate expectations of businesses and end consumers.
I can give you another figure to show that multi-jurisdictional mergers have become commonplace.
At present, the European Commission has some form of cooperation with non-EU agencies in more than half of all cases that involve remedies or require in-depth reviews – what we call ‘second phase’.
And every time two or more sister agencies talk to each other on a given case, we see the importance of having procedural and substantive rules that are compatible – or at least not at odds with each other.
We could see this earlier this month in the acquisition of Alstom by General Electric, which the European Commission and the United States Department of Justice cleared on the same day.
But in addition to the US Department of Justice, we also cooperated with competition authorities in Brazil, Canada, China, Israel, South Africa and Switzerland.
The Department of Justice had different concerns, due to different conditions in the US markets for heavy duty gas turbines. But, thanks to very close co-operation – not only in relation to the substantive assessment, but in particular with regard to remedies – we managed to obtain aligned remedies for both EU and US concerns.
Good cooperation also occurred in the reviews of GlaxoSmithKlines' acquisition of Novartis’ oncology and vaccines businesses, which were cleared in January 2015. We cooperated with the agencies of Canada, China, Australia, Brazil, Pakistan, and the Federal Trade Commission in the US.
The in-depth cooperation we had with those agencies allowed us to have an understanding of the specificities of the healthcare competitive landscape in our respective jurisdictions.
Despite some differences in the substantive assessment, we managed to find compatible and non-conflicting remedies, notably on both sides of the Atlantic. In addition, other agencies (Canada, Australia, Pakistan) could rely on the remedies offered in the EU and the US to clear the transaction.
We can think of this as interoperability, to borrow a term from the digital industries. The ICN has an important role to play in promoting it among different merger-review systems.
The work in ICN has produced tangible products, such as the Practical Guide to International Enforcement Cooperation in Mergers developed by the Merger Working Group and adopted at this year’s Annual Conference in Sydney.
The Practical Guide provides direct and case-based guidance to ICN members as to how agencies can align timetables, share information and cooperate both on substance and on remedies so to avoid inconsistencies.
I encourage all ICN members to use the Practical Guide in their daily work, because it can help us use our resources better when we review a deal that straddles more than one jurisdiction. But more than that, I encourage all of you to build a strong network so that you can pick up the phone and make use of one another in the daily enforcement work.
It’s all of you who make that cooperation happen. It is only if in specific cases, you can pick up the phone and have a meaningful exchange with your colleagues in other agencies that the systems interoperate. I hope that your exchanges over the next few days will make future cooperation even more effective and seamless.
Thank you for your attention. I wish you a lively and productive debate.