COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 08.10.1996 
COM(96) 479 final 
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 Slates of America 
regarding the application of their competition laws 
10 APRIL 1995 TO 30 JUNE 1996 

a 
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 
10 APRIL 1995 TO 30 JUNE 1996 
1. Introduction 
On 23 September 1991 the European Commission concluded an Agreement with the 
Government of the United States of America regarding the application of their competition 
laws1 ("the Agreement"), the aim of which is to promote cooperation between the competition 
authorities2. 
However, in a judgment of 9 August 1994, the Court of Justice held that, under the 
EEC Treaty, it was for the Council to conclude such an act. 
Because the Agreement had not been concluded by the competent institution under 
Community law, the defect had to be remedied. This was done by a joint Decision of the 
Council and the Commission of 10 April 19954 approving the Agreement and declaring it 
applicable from the date it was first signed by the Commission. On that occasion, the 
Council and the Commission also approved the text of an interpretative letter addressed to the 
Agreement between the Government of the United States of America and the Commission of 
the European Communities regarding the application of their competition laws. OJ L 95 of 
27.4.95. pp.47 - 50. 
In this Report, "the Commission" or "the European Commission" means the Commission of 
the European Communities: "the DoJ" means the Antitrust Division of the US Department of 
Justice; and, "the FTC" means the US Federal Trade Commission. 
France v. Commission. Case C-327/91 
See OJ L 95 of 27.4.95. pp. 45 and 46. 
REPORT ON THE APPLICATION OF THE EC/US AUKKKMKNT Page 2 
US clarifying the provisions of the Agreement relating to confidentiality5. 
It was also jointly agreed that the Commission should present an annual report 
evaluating the application of the Agreement to the Council and the European Parliament. 
This is the first of these reports, covering the period since the approval of the Agreement, up 
to 30 June 1996. 
The legal certainty regarding the status of the Agreement enjoyed since its approval 
on 10 April 1995 has allowed the European Commission to pursue its efforts to cooperate 
with its US counterparts. 
Nonetheless, the period covered by this first report is relatively short and therefore in 
many instances it has not been possible to identify significant trends or to draw definite 
conclusions. Moreover, the limited scope of cooperation during the period prior to 10 April 
1995 has meant that the information available for that period does not provide a good basis 
for comparison. In particular, during the period following the judgment of the Court of 
Justice, notifications under the Agreement were suspended pending approval of the Agreement 
by the Council6. Notifications were made nonetheless, in accordance with the 1986 OECD 
Recommendation7. 
Many of the cases notified during the period under review are still active, particularly 
matters falling under Articles 85 and 86 of the EC Treaty and, therefore, it is not possible to 
discuss them in detail or to mention them by name, save where they have already been the 
subject of a Commission statement or notice. 
At the same time, many merger cases, which gave rise to notifications and cooperation 
under the Agreement, are now closed because of the strict deadlines applied under the Merger 
Regulation and these can therefore be discussed in this report. 
In addition, the confidentiality surrounding the US' own procedures and the obligation 
of confidentiality to which the European Communities are subject by virtue of Article VIII.2 
of the Agreement, has meant that even where the European Commission has completed its 
investigations and closed cases, references to specific cases which are still being pursued by 
the US authorities, or are otherwise covered by confidentiality requirements, have had to be 
limited. 
Despite these limitations, it is intended that this report will give some sense of the 
See OJ L 131 of 15.6.95, pp. 38-39 
Twenty-fourth Competition Report, point 413. 
1986 OECD Revised Recommendation concerning cooperation between Member countries on 
restrictive business practices affecting international trade [(86) 44 (Final)]. 
Council Regulation (EEC) No. 4064/89 of 21 December 1989 on the control of concentrations 
between undertakings, OJ L 395, 30.12.1989, p. 1: as corrected in OJ L 257, 21.9.90, p. 13. 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 3 
nature and degree of cooperation between the Commission and the US authorities. 
2. The Agreement 
As a brief reminder, the main provisions of the Agreement are recalled. They include: 
Q notification of cases handled by the competition authorities of one Party, when these 
cases concern the important interests of the other Party (Article II), and exchange of 
information on general matters relating to the implementation of the competition rules 
(Article III); 
Q cooperation and coordination of the actions of both Parties' competition authorities 
(Article IV) ; 
• a "traditional comity" procedure by virtue of which each Party undertakes to take into 
account the important interests of the other Party when it takes measures to enforce 
its competition rules (Article VI); 
Q a "positive comity" procedure by virtue of which either Party can invite the other 
Party to take, on the basis of the latter's legislation, appropriate measures regarding 
anti-competitive behaviour implemented on its territory and which affects the 
important interests of the requesting Party (Article V). 
In addition, the Agreement makes clear that none of its provisions may be interpreted 
in a manner which is inconsistent with the legislation in force in the European Union and the 
United States of America (Article IX). In particular, the competition authorities remain bound 
by their internal rules regarding the protection of the confidentiality of information gathered 
by them during their respective investigations (Article VIII). 
3. Notifications 
3.1 Number of cases notified* 
Notifications were made by the Commission in fifty-four cases during the period 
between 10 April 1995 and 30 June 1996. These cases are listed in Annex 1. 
During the same period, the Commission received notifications from the US authorities 
in forty-four cases, twenty-four from the DoJ and twenty from the FTC. These cases are 
listed in Annex 2. 
The figures given represent the number of cases in which notifications were made and not the 
total number of notifications. Under Article II of the Agreement, notifications are made at a 
number of specified stages of the investigation and formal procedure in a case. 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 4 
The majority of notifications in both directions concerned merger cases (44 EC and 
22 US). The number is particularly high in the case of the notifications made by the 
Commission and reflects the procedure under the Merger Regulation whereby, on receipt of 
a notification, the Commission publishes a notice of the fact of the notification in the Official 
Journal.. Thus the proposed merger is made public at the outset and all mergers meeting the 
criteria for notification to the US are notified, even where, on subsequent examination, they 
do not raise competitive concerns The corresponding US legislation10 requires that the fact 
of a merger filing, as well as its content, remain confidential. Thus the US authorities notify 
the Commission only when, after a preliminary examination, they decide to open an 
investigation into the proposed merger. 
Table 1 sets out in figures the notifications made under the Agreement and the OECD 
Recommendation since 23 September 1991. 
Table 1 
NOTIFICATIONS 
Year No. of EC No. of US No. of merger 
notifications notifications notifications 
FTC DoJ 
1991 5 10 2 3 (EC) + 9 (US) 
1992 26 20 20 11 (EC) + 31 (US) 
1993 44 22 18 20 (EC) + 28 (US) 
1994 29 16 19 18 (EC) + 20 (US) 
1995 (to 9/4) 9 3 5 4 (EC) + 6 (US) 
1995 (from 10/4) 33 11 16 27 (EC) + 12 (US) 
1996 (to 30/6) 21 9 8 17 (EC) + 10 (US) 
10 Hart-Scott-Rodino Act. 1976. 15 U.S.C.§ 18A(h) 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 5 
3.2 Practical steps 
During the period under review, the Commission took some practical steps to improve 
internal coordination and to ensure that cases meeting the criteria for notification are duly 
notified. 
The first practical step taken by DG IVn was the elaboration of a set of guidelines for 
its case handlers, identifying the criteria which would trigger notification and the stages in 
the procedure when notification should be made. These guidelines have now been inserted 
in DG IV's internal manual of procedures. 
The second DG IV initiative was the development of a database recording the details 
of notifications made under the Agreement, in line with DG IV's policy of computerizing its 
work, wherever this brings efficiencies. This allows case handlers in the operational units to 
feed into the database the information necessary to make a notification. This is done by 
creating a link between the various databases used within DG IV. The notifications database 
does not, however, contain any of the confidential information collected by DG IV during the 
investigation of the case as this is contained in a file to which access has been restricted. The 
new database will facilitate making notifications - they should be made more quickly and be 
more complete - and following up on notified cases. 
3.3 Notifications to the Member Stales 
The text of the interpretative letter sent by the European Communities to the US 
provides that the Commission, after notice to the US competition authorities, will inform the 
Member State or Member States, whose interests are affected, of the notifications sent to it 
by the US antitrust authorities. Thus, when notifications are received from the US authorities, 
they are forwarded immediately to the relevant units of DG IV and at the same time copies 
are sent to the Member States, if any, whose interests were affected. Equally, at the same 
time that DG IV makes notifications to the US authorities, copies are sent to the Member 
State(s) whose interests are affected. 
The assessment of which Member State should be notified is made on the basis of the 
Commission's statement to Council of 10 April 1995, which largely reproduces the provisions 
of Article II.2 of the Agreement. In most instances, the US authorities also notify the 
Member States directly, under the OECD Recommendation12. 
The Directorate General for Competition of the Commission of the European Communities, 
which is primarily responsible within the Commission stnicturc for the application of the 
Community's competition rules. 
Revised recommendation of the OECD Council concerning co-operation between Member 
countries on anti-competitive practices affecting international trade, adopted 27/28 July 1995 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 6 
4. Cooperation 
The Commission's experience of cooperation with its US counterparts in individual 
cases since 10 April 1995 has been very positive. However, as stated above, many of the 
cases where there have been contacts are still under investigation, on one side or the other, 
and so cannot be discussed. Therefore, of the recent cases of cooperation, it is mainly the 
merger cases which are discussed in this report. This is not to say that non-merger cases are 
less important from the point of view of cooperation. In fact non-merger cases probably lend 
themselves to greater cooperation and coordination of enforcement activities because, on both 
sides of the Atlantic, the competition authorities have greater scope for control of timing. 
Indeed, there may ultimately be more to be gained from coordination of enforcement activities 
in non-merger cases, in particular if greater cooperation facilitates the investigation and 
prosecution of hard-core cartels. 
The nature of cooperation depends on the individual case, and can relate to such 
matters as simple enquiries regarding the timing of procedures or to coordination of the 
proposed remedy in a case. 
4.1 Timing 
Most cases of cooperation between the Commission and the US agencies start by a 
discussion of the timing of the respective procedures. Checking when each step in the 
procedure is likely to be taken is a key element in determining the evolution of future 
cooperation and the scope for coordination of enforcement activities. It is important that the 
cooperating authorities know approximately when important steps may be reached in their 
respective procedures, 
a) to ensure that they do not undermine the other side's investigation 
b) to see whether coordination in the timing of certain events can in itself be a useful 
tool in case handling 
and 
c) in cases having a common interest for both jurisdictions, it is clearly useful to arrive 
at a point where coordinated action may be taken at more or less the same time, as 
was done in the Microsoft case. 
On occasion, an undertaking may be tempted to put pressure on one authority to finish 
its enquiry quickly by misstating the stage reached in the enquiry on the other side: It is 
therefore useful to know the approximate timing of the other authority's procedure in order 
to resist such pressure. 
4.2 Assessing each other's view of the competitive effects of a transaction or certain 
kinds of behaviour 
4.2.1 Product market 
Discussions between the case handlers frequently focus on the product market to 
determine whether both sides have arrived at similar conclusions. These discussions are based 
on general information which is publicly available. There is no doubt that exchanges of this 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 7 
sort have disclosed a high degree of similarity between the market analyses of the 
Commission and the US authorities. This is very important, given the need to have 
meaningful exchanges while observing the rules on confidentiality. If the Commission and 
the US authorities took different initial views on market definition, it might not be possible 
to explore fully the reasons for the different approaches without discussing confidential 
information which the parties had provided. Under our present rules, this could only be done 
with the agreement of the parties. 
In Kimberly-Clark/Scott Paper the different product markets involved in the merger 
were one of the first topics discussed. There was considerable satisfaction that the definition 
of the product markets reached independently in the DoJ and in the Commission was 
identical. However, the different geographical markets in question meant that the product 
markets presenting competition problems for each authority differed. In the Commission's 
decision the parties were required to divest the KC's Kleenex brand toilet tissue and Scott's 
Andrex brand facial tissue and hankies in the UK and Irish markets. In the US, divestiture 
of Scott's facial tissue and baby wipes business was required. 
In Glaxo/Wellcome there were numerous product markets to be considered. Initial 
contacts were useful to assure both sides that they had concentrated their analysis on the same 
product market - migraine treatments. While there were several competing products to those 
already marketed separately by Glaxo and Wellcome, the effect of the parties' individual R&D 
programmes in developing new drugs was also a factor which had to be taken into account. 
Both Glaxo and Wellcome had similar anti-migraine treatments at an advanced stage of 
development and it was considered that the time and cost involved for a competitor in 
reaching the same stage of development were such that it was essential to maintain both 
products in competition with each other. The approaches taken by the European Commission 
and the FTC to resolve this problem were different; the FTC considered a horizontal market 
for R&D for anti-migraine drugs on its own, while the Commission looked at the spill-over 
effects of R&D in the market for the sales of medicines. The Commission decision therefore 
provided for the merged company to license one of the two anti-migraine treatments in 
development and so retain a potential competitor, while the FTC requirecffull divestiture of 
Wellcome's R&D for this anti-migraine treatment. 
It is interesting to note that, during 1995, there have been contacts between 
Commission officials and their US counterparts outside the framework of a specific case to 
exchange views on the manner in which product market analysis is carried out in the 
pharmaceutical sector, following a series of mergers in that sector (Hoechst/Marion Merrill 
Dow, Glaxo/Wellcome and Upjohn Pharmacia). 
4.2.2 Geographical market 
Discussion of the geographical market tends to be more limited, as usually the 
Commission and the US authorities are concentrating on the competitive effects of the 
behaviour or transaction on their own markets, even in cases where the activity under 
investigation is organized on a transatlantic or worldwide scale, as in the Microsoft or 
Shell/Montecatini cases. 
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As already mentioned, the different geographical markets identified in the Kimberly 
Clark/Scott Paper case resulted in different divestiture requirements. 
In Lockheed Martin/Loral the effect of the merger on the satellites market was 
investigated and the question of the relevant geographical market discussed. The Commission 
had, in its previous decisions relating to satellites, considered the relevant market to be global 
and did so also in this case. However, the US ultimately considered the relevant market to 
be the US, because of, among other things, differences in price, quality and/or technology 
between US and non-US manufacturers. 
In another merger case, again the relevant geographical market was discussed. 
Although the merger ultimately raised no problems for the FTC, and was cleared by the 
European Commission in the first phase, the discussions demonstrated a different approach 
to geographical markets, with the European Commission considering the Community as the 
relevant market while the US considered the market to be global. 
4.2.3 Anti-competitive effect 
In the Atlas case, which was of concern to the DoJ because of its implications for the 
Phoenix joint venture it was reviewing during 1995, the Commission provided the DoJ with 
a version of the warning letters to Deutsche Telekom and France Telecom, from which all the 
confidential elements had been removed. This enabled the DoJ to understand fully the 
Commission's concerns relating to the Atlas joint venture which had previously been the 
subject of a Commission press release and public comment by the parties. The US authorities 
also received advance copies of the draft Article 19(3) notices in the Atlas and Phoenix cases, 
with the consent of the parties. 
In certain cases under Articles 85 and 86 of the EC Treaty, with the consent of the 
complainants, the Commission and the US authorities have been able to discuss the evidence 
offered by complainants in relation to anti-competitive behaviour. In one case still pending 
under Articles 85 and 86 and the US antitrust legislation, the US complainant agreed to copies 
of its depositions being provided to the Commission to assist in its enquiries. In the same 
case, the Commission was able to provide the US side with copies of requests for information 
pursuant to Article 11 of Council Regulation No. 17/62 drawn up on the basis of information 
provided by the complainant, again with the complainant's consent. 
In another case pending under Articles 85 and 86 and under US legislation, the 
complainant provided each authority with copies of the complaint lodged with the other and 
so facilitated a first meeting between the competition authorities to discuss how each would 
deal with the complaint. 
In the shipping sector, Commission and DoJ officials considering distinct cases were 
able to exchange views on the anti-competitive effect or otherwise of a contingency clause 
(price changes dependent upon an event not connected with the contract) which was common 
to the contracts offered in both cases. What appeared from press reports to be different 
treatment of similar problems on further examination turned out to be a similar economic 
analysis applied to dissimilar problems. 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 9 
4.3. Ascertaining law and fact in the other jurisdiction 
Cooperation between the competition authorities can help clarify a point of foreign law 
relevant to the interpretation of an agreement or to the efficacy of a remedy. Similarly news 
media may be readily available only to one authority. The public filing with other regulatory 
agencies in the US can supply valuable information; the US authorities examine this as a 
routine part of their enquiries and can direct the Commission's attention to relevant aspects. 
The Lockheed Martin/Loral merger was an example of this. Early in the investigation, 
the FTC was able to draw the Commission's attention to information filed with the Securities 
and Exchange Commission and thus on public record in the US. This proved helpful in 
evaluating the effects of the merger on the satellites market. 
In the same case, the Commission had concerns about the relationship between the 
merged company and a company which was being spun off in the course of the merger. The 
parties provided the Commission with a written agreement which satisfied the Commission, 
under the Merger Regulation, that the merged company would not have control over the spun-
off company. However, as the agreement had been drafted in conformity with US law, it 
proved useful to discuss with the FTC the implications of its different provisions. 
4.4 Remedies 
It is clearly desirable that two competition authorities dealing with the same case 
should not reach conflicting results in a common jurisdiction, that the results in their 
respective jurisdictions should not be contradictory and that, all things being equal, the 
remedy imposed in its own jurisdiction by one authority should not be much more or much 
less rigorous than the remedy imposed /// its own jurisdiction by the other. Joint consultation 
on drafting can help to tighten remedies, particularly where undertakings are given by the 
parties. 
Where case handlers could not enter into detail on the proposed remedies without 
disclosing confidential information, discussions have been limited to the remedies the 
Commission and the US authorities have adopted in previous cases raising similar problems. 
For example, in the Atlas and Phoenix joint ventures, an early discussion of the US 
investigation of the Phoenix case was related to the outcome of the BT/MC1 case. 
However, with the consent of the parties, it has been possible to discuss the specific 
remedies in detail, as in the Lockheed Martin/Loral and Kimberly Clark/Scott Paper merger 
cases. 
4.5 Use of waivers 
The positive experience of the Microsoft case, and the use of waivers of confidentiality 
to permit the competition authorities to exchange information, encouraged both agencies to 
seek waivers wherever this would be helpful to the investigation. 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 10 
Waivers were requested and granted in order 
to permit agencies to discuss remedies in specific cases (Kimberly Clark/Scott Paper, 
Lockheed Martin/Loral) 
to exchange specific documents disclosing anti-competitive behaviour (in two pending 
cases under Articles 85 and 86 of the EC Treaty and under US antitrust legislation) 
to disclose the decision of the Commission is a case where it had not yet been made 
public 
to permit the Commission to provide Article 11 letters containing confidential 
information to the US agencies (in a case pending under Articles 85 and 86). 
to allow the Commission to provide advance copies of official notices setting out its 
analysis and the terms of the proposed settlement of a case (Atlas/Phoenix) 
to permit the Commission and the DoJ to discuss in detail all aspects of a case 
pending under Articles 85 and 86 and under US antitrust legislation. 
Early last year, the Commission requested the complainants in a case to waive 
confidentiality and to provide the DoJ with copies of the complaints and the incriminating 
documents they contained. The complainants refused however. The effects of this refusal 
cannot be fully assessed although it placed serious limitations on discussion of the case with 
the US authorities. 
5. Confidentiality 
The Commission is very conscious in the application of the Agreement of the 
importance of respecting the EU's rules on confidentiality. In the guidelines introduced into 
DG IV's internal manual of procedures, case handlers are reminded of their obligation as 
regards the confidentiality of information. In addition, telephone contacts with the US 
agencies are normally conducted in the presence of at least two officials from DG IV, one of 
whom is from the unit responsible for the international aspects of competition policy. In this 
manner, officials can act as a check on one another and so ensure that the confidentiality rules 
are fully respected. 
6. Information to Member States on cooperation 
In its interpretative letter to the US Government, the European Communities provide 
that the Commission, after consultation with the US competition authorities, will inform the 
Member State or Member States whose interest are affected of any cooperation or 
coordination of enforcement activities. However, as regards such activities, either competition 
authority will respect the other's request not to disclose the information which it provides 
when necessary to ensure confidentiality, subject to any contrary requirement of the applicable 
law. 
When there have been contacts on a particular case, DG IV has informed the Member 
State(s) whose interests are affected by letter of the contacts and their subject matter. These 
letters are intended to keep such Member State(s) informed that there has been a follow-up 
to the notification 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 11 
To date, the US has not relied on the terms of the interpretative letter to ask the 
Commission not to disclose information nor to defer the disclosure of information to a 
Member State. 
7. Positive comity 
The positive comity provision of the agreement (Article V) has not been formally 
invoked by either side, although a number of matters have been identified by one side or the 
other as raising comity questions. In several cases under active investigation by the 
Commission, the US authorities have chosen to defer possible action of their own while 
maintaining regular contact with Commission pending the outcome of its investigations and 
any remedial action taken as a consequence. This experience shows that, in many instances, 
a formal request under Article V is unnecessary if a case can be dealt with through 
cooperation. At the same time, the use of the positive comity provisions can be seen in a 
positive light in that it marks a commitment by one Party to forego unilateral action in favour 
of the other Party enforcing its rules in cases falling within its jurisdiction. Therefore, the 
Commission would not be concerned by the use of Article V by the US authorities and would 
in its turn invoke Article V in cases affecting the Community's important interests. 
It may appear that the US has greater scope than the EU to apply the positive comity 
instrument in that the extraterritorial nature of its legislation has encouraged companies to 
complain to the US authorities when anti-competitive activity on foreign markets affects their 
exports. By contrast, the Community's competition rules have been more inward looking. 
Nonetheless, the Commission considers that the positive comity instrument in the Agreement 
can be applied in both directions and that the Community may ask the US authorities to take 
action where anti-competitive behaviour on the US market threatens European companies' 
ability to compete. In order to do this, the Commission would welcome European business 
bringing such situations to its attention. 
8. Bilateral meeting of 13 November 1995 
The high level meeting with the US authorities on 13 November was the first formal 
meeting since 20 September 1993. 
As this was the first meeting since the approval of the Agreement by the Council, it 
was felt appropriate to depart from the previous format and concentrate in the main on the 
mechanics of cooperation: reviewing the current notification system and the timeliness and 
content of notifications; determining whether requests for cooperation were being adequately 
dealt with; and, possible improvements to current practices, e.g. greater use of waivers where 
appropriate. 
It was agreed that, whenever possible, the Commission and the US authorities would 
give greater recognition to cooperation under the Agreement in press releases on individual 
cases and in speeches, while respecting each side's confidentiality rules and the provisions of 
the Agreement in this regard. 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 12 
The meeting also gave rise to a brief exchange of views on future international 
cooperation, both in the context of the US International Antitrust Enforcement Assistance Act, 
which the US delegation presented to the Commission, and the recommendations of the 
Report of the Group of Experts entitled, "Competition Policy in the New Trade Order: 
Strengthening Cooperation and Rules". In this regard, the Commission was able to inform 
the US of the creation of a working group by the Community's Directors General for 
Competition and the Commission in order to consider issues related to deeper bilateral 
cooperation. On the multilateral side, the US expressed its sympathy for efforts to promote 
greater debate on trade and competition, but had doubts about the likelihood of achieving 
much progress in the short to medium term. However, the US authorities proposed that it 
would be useful to identify the core of competition principles on which all countries agree 
(e.g. cartels) as well as identify the various exceptions which exist. 
The final session of the meeting was devoted to a discussion of innovation markets, 
the rapidly developing sectors on which competition authorities are increasingly concentrating. 
This was particularly interesting in the light of the FTC hearings on innovation and 
globalization, held in the latter part of 1995. 
9. Conclusions 
As indicated at the outset, it is hard to draw firm conclusions from the relatively 
limited experience since 10 April 1995. However, an overall assessment of the application 
of the Agreement is that it has proved to be a useful vehicle for cooperation, for exchanging 
views on competition policy generally, e.g. at the meetings anticipated in its Article III.2, and 
for cooperating in individual cases. It is probably in this latter area that the experience since 
10 April 1995 has been most interesting. 
9.1 Cases where cooperation has improved case handling 
As previously stated, cooperation on individual cases has shown a remarkable 
similarity in the analyses of the Commission and its US counterparts. There have been 
relatively limited divergences of view. This is, in the main, attributable to the consistency 
of the economic analysis of the competition authorities, but also to the working method 
adopted under the Agreement. Once a case has been identified as being of common interest, 
there are contacts between officials in the Commission and the US authority dealing with the 
case and these contacts allow any potential differences in appreciation of the case to be 
identified at an early stage. 
Although EU merger deadlines offer only limited scope for cooperation, experience 
to date in cases such as Lockheed Martin Loral and Kimberly Clark Scot! Paper has proved 
to be very valuable, in assessing the product market and in ensuring that the remedies 
imposed by each authority do not conflict. 
Non-merger cases offer greater possibilities for coordination of enforcement activities. 
Neither agency is subject to the same time constraints as in merger cases. However, it is also 
the case that parties may be more reluctant to allow information to be shared between the 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 13 
competition authorities if it might disclose anti-competitive behaviour on their part and expose 
them to sanction in both jurisdictions. 
9.2 Positive comity and limitation of unilateral action 
One of the main aims of the Agreement is to promote greater cooperation between 
competition authorities and to reduce the need for unilateral action. In its dealings with the 
US, the Commission has seen evidence of the US authorities' preparedness to forego unilateral 
action in preference for closer cooperation with the Commission. As previously mentioned, 
a number of cases have raised comity questions, although Article V has not been formally 
invoked. In several of the cases investigated by the Commission, the US authorities have 
aligned their enforcement activity to that of the Commission, as the anti-competitive 
behaviour in question is targeted on the European market and the (secondary) effects on the 
US market may be resolved indirectly through a resolution of the problem within the EU. 
9.3 Cases where cooperation has been curtailed because of the limits of the 
Agreement 
Some aspects of cooperation do not require an exchange of confidential information, 
e.g. timing of procedures or market analysis where much of the product information has 
already been filed with public agencies (as frequently happens in the pharmaceutical and 
chemical sectors etc.) However, restrictions on the information which can be provided make 
discussions more difficult, and although there have been no significant divergences of analysis 
in cases falling within both EU and US jurisdictions, the confidentiality rules would make it 
more difficult to discuss in detail the reasons why conflicting views might be arrived at, based 
on our respective analyses of a case. 
The experience of cooperation since 10 April 1995 has demonstrated that restrictions 
on the exchange of confidential information have been felt in a number of cases. The 
increasing use of waivers by the Commission and its US counterparts demonstrates that there 
are clear advantages to be obtained where both sides are able to share their knowledge in a 
case. Waivers have thus been successfully requested in a number of cases. In all these cases, 
however, it was clearly in the interests of the parties granting the waiver to see that the 
investigation was pursued or that there was a speedy resolution of the matter. 
In one case, the failure to obtain the complainants' consent to share information may 
have frustrated DG IV's attempts to engage fully the US authorities in an investigation of 
alleged anti-competitive conduct. 
It is interesting to note that none of the cases of cooperation cited in this report is a 
cartel investigation, and it is in this area particularly that the confidentiality rules restrict 
cooperation between the EU and the US. Yet, both the EU and US authorities have affirmed 
on numerous occasions that the elimination of cartels is a priority. US enforcement activity 
in this area increased significantly over recent years and the EU has imposed an 
unprecedented level of fines in cartel cases. It is therefore perhaps to this area that we must 
look to find a means of improving and deepening cooperation where there is a common 
interest in a case. 
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ANNEX 1 
NOTIFICATIONS BY THE EUROPEAN COMMISSION TO THE US AUTHORITIES13 
MERGER CASES: 
1. IV/M.269 - Shell/Montecatini (review of commitment) 
2. IV/M. 551 - ATR/BAe 
3. IV/M.553 - RTL/Veronica/Endemol 
4. IV/M.560 - EDS/Lufthansa 
5. IV/M.566 - CLT/Disney/SuperRTL 
6. IV/M.573 - ING/Barings 
7. IV/M.577 - GE/Power Controls B.V. 
8. IV/M.580 - ABB/Daimler-Bcnz AG 
9 IV/M.587 - Hocchst A.G./Marion Merrill Dow. US 
10. IV/M.588 - Ingersoll-Rand Co , US/Clark Equipment, US 
11. IV/M.589 - Seagram Company Ltd/MCA 
12. IV/M.591 - Dow Europe S A/Buna Sow Lcuna 
13 IV7M.600 - Employers Reinsurance Corp AG/Frankona Ruckversichenmg 
14. IV/M.601 - Employers Reinsurance Corp AG/Aachencr Ruckversichenmg 
15. IV/M.603 - Crown Cork & Seal/Carnaud Mctalbox 
16. IV/M.612 - RWE-DEA-Enichcm-Augusta 
17. IV/M.613 - Jefferson Smurfit Group plc/Munksjo AB 
18. IV/M.615 - Rhone-Poulenc/Engelhard 
19. IV/M.617 - Crédit Local dc France/Hypothckcnbank in Berlin 
20. IV/M.623 - Kimberly-Clark Corporation/Scott Paper Co. 
21. IV/M631-Upjohn/Pharmacia 
Due to confidentiality requirements, this list includes only those investigations or cases which 
have been made public. 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Pane 15 
ANNEX 1 (CONTINUED) 
22. IV/M.632 - Rhone Poulcnc/Fisons 
23. IV/M.642 - Chase ManhaUan/Chcmical Banking 
24. IV-M.651- AT&T/Philips Electronics N.V. 
25. IV/M.656 - Seagate/Conner 
26. IV/M.659 - GE Capital/Solvac 
27. IV/M.660 - RTZ/CRA 
28. IV/M.663 - Dow/Dupont 
29. IV/M.666 - Johnson Controls/Roth Frcrcs 
30. IV/M.675 - Alumix/Alcoa 
31. IV/M.673 - Channel Five 
32. IV-M.681- Royal Bank of Scotland/Bank of Ireland 
33. IV/M.683 - GTS-Hcrmes Inc/HIT Rail BV 
34. IV/M.689 - ADSB/Belgacom 
35. IV-M.697 - Lockheed Martin Corp/Loral Corp 
36. IV-M.699 - Tomkins/Gates 
37. IV/M.700 - Emerson/Caterpillar 
38. IV/M.717 - Viacom/ Bear Steams 
39. IV/M.721-Te.\tron/Valois 
40. IV/M.726 - Bosch/Allied Signal 
41. IV/M.737 - Sandoz/Ciba-Geigy 
42. IV/M.741 - Ford/Mazda 
43. IV/M.758 - Sara Lee/Aoste Holding SA 
44. IV/M.768 - Lucas/Varitv 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Pane 16 
ANNEX 1 (CONTINUED) 
NON-MERGER CASES: 
1. IV/35.147-Microsoft 
2. IV/35.239 - IRI/A.C. Nielsen 
3. IV/35.652 - Europe On Line (Meigher Communications Ltd. Partnership/Interchange Network Holding 
Co.) 
4. IV/35.836 - Austrian Airlines/Swissair/Sabena/Delta Airlines Inc. 
5. IV/35.897 - American Express/Visa 
6. IV/35.972 - Deutsche Lufthansa/United Airlines 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 17 
ANNEX 2 
NOTIFICATIONS BY THE US AUTHORITIES TO THE EUROPEAN COMMISSION14 
MERGER CASES: 
1. Oerlikon-Buhrle/Toolex Alpha (divestiture of assets following merger) 
2. Kimberly-Clark Corporation/Scott Paper Co. 
3. British Petroleum Company, PLC, Britain/Campaign de Saint Gobain, France 
4. T&N PLC, UK/Kolbenschmidt AG. Germany 
5. Hoechst A.G./Marion Merrill Dow. U.S. 
6. Ingersoll-Rand Co., New Jersey/Clark Equipment. Indiana 
7. Devro International PLC, UK/Teepak International. Inc.. US 
8. Lockheed Martin Corporation / Loral Corporation 
9. St. Gobain/Carborundum Company 
10. Genencor International Inc./Solvay SA 
11. Koninklijke Ahold nv/ Stop and Shop Companies Inc. 
12. Fresenius A.G./ National Medical Care 
13. T&N pic (modification of consent order) 
Due to confidentiality requirements, this list includes only those US investigations or cases 
which have been made public by the US antitrust authorities. 
REPORT ON THE APPLICATION OF THE EC/US AGREEMENT Page 18 
ANNEX 2 (CONTINUED) 
NON-MER«;ER CASES: 
1. Lykes Bros. Steamship Co., lac. /Universal Shippers Association 
2. IBM 
3. International Association of Conference Interpreters ("AIIC") 
4: Delta Air Lines. Swissair, Austrian Airlines. Sabcna Belgian World Airlines 
5. United Airlines Inc./ Deutsche Lufthansa AG 
6, AmericanAirlines/BritishAirwavs 

^ 43 
ISSN 0254-1475 
COM(96) 479 final 
DOCUMENTS 
EN 11 08 
Catalogué number : CB-CO-96-486-EN-C 
ISBN 92-78-09694-6 
Office for Official Publications of the European Communities 
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