Substantive Issues in Merger Review Report on the 2007 ICN Merger Workshop, Dublin Thursday, 31 st May 2007 John Evans The Competition Authority, Ireland

Workshop Description 1.Part of Work Plan of ICN Merger Investigation and Analysis Subgroup chaired by Ireland 2.Designed to promote greater understanding of the ICN’s work products:  ICN Merger Guidelines Workbook 2006, ICN Remedies Project 2005 and ICN Investigative Technique Handbook Aimed at agencies’ staff lawyers and economists 4.Co-funded by the Irish Competition Authority and the UK Office of Fair Trading 5.Prepared with DG Comp, Bundeskartellamt, UK OFT, UK CC and US DOJ

Workshop Description (contd.) 6.Substantive issues in merger review were explored using:  A hypothetical merger case  A combination of plenary sessions and small-group interactive breakout sessions 7.Interaction encouraged through:  Five breakout rooms: in each 16/17 participants assisted by 5/6 moderators  Role play in both plenary and breakout sessions  Mini-presentations, use of visuals like transparencies etc.

Workshop Attendance 1.Attendance:  Total registered: 116  Moderators/speakers: 31  Participants: 85 2.Moderators/speakers:  19 from agencies (Canadian Competition Bureau, DG Comp, Bundeskartellamt, Irish Competition Authority, UK Office of Fair Trading, UK Competition Commission, US Department of Justice and US Federal Trade Commission)  12 from NGAs (Canada, Belgium, Germany, Ireland, Korea, UK, US)

Geographic Coverage 1.Participants from 42 countries:  Argentina, Australia, Barbados, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Chile, Cyprus, Czech Republic, Denmark, El Salvador, Estonia, Finland, France, Iceland, Ireland, Israel, Italy, Jersey, Latvia, Lithuania, Netherlands, New Zealand, Norway, Pakistan, Poland, Portugal, Romania, Russia, Serbia, Singapore, Slovakia, South Africa, Spain, Switzerland, Taiwan, Thailand, The Netherlands, Turkey, UK, Ukraine 2.…in all five continents:  Asia (7 countries), Africa (1), Europe (27, 18 in EU), North America (1), South & Central America (4) and Oceania (2)

Workshop Feedback 1.50 feedback forms returned from 85 participants (59%):  68% read the hypothetical in advance  60% of respondents with more than 3 yrs of merger experience  Only one-fifth had attended previous ICN Merger Workshops 2.ICN Merger Working Group outputs are used mainly as:  Internal staff training  Reference materials for daily merger investigation work  Guidance for amending existing or proposing new antitrust legislation

Most relevant/beneficial aspects 1.Breakout session interaction:  Face-to-face contact with other agencies’ staff  Sharing views and approaches during small-group discussions  Moderators assisted in getting the discussion going on 2.Learning:  How to structure a merger investigation  How to identify substantive issues to focus on 3.Hypothetical case:  Well organised, similar to a real case, plenty of facts/evidence

What went well 1.All 5 topics were thought valuable, but in particular:  Unilateral/coordinated effects  Assessing overall evidence in merger case  Remedies 2.Plenary sessions:  Very informative  Speakers very good actors! Role play made the case look like real 3.Very positive feedback on location, logistics, organisation

For Improvement 1.Language for non-English native speakers :  A barrier to discussion/interaction for some  Moderators should speak more slowly 2.Time constraints in breakout sessions:  Too many topics - more time for discussion needed  Consider extending the two-day workshop discussion to two and a half days 3.To enhance discussion, greater homogeneity of groups for breakout sessions - on the basis of:  Level of experience  Language proficiency

Looking forward 1.For Work Plan:  “Take home” version of the Workshop: the Australian Competition and Consumer Commission is already planning to use the Workshop case materials for a specific internal training program  Contact: see ICN Merger Work Plan All workshop materials will be soon available at ICN website

ICN Merger Investigation & Analysis Subgroup Remedies - Issues for breakout session 2007 ICN Annual Conference, Moscow John Evans The Competition Authority, Ireland

Hypothetical case

Issues for discussion 1.How thorough an investigation should the agency conduct before making a decision to accept remedies proposed by the parties? 2.Is the remedy proposal addressing the competition concerns? 3.What are the risks related to the actual implementation? What would composition risks, purchaser risks or assets risks be in this case? 4.For an effective implementation of structural remedies, would certain behavioural remedies be necessary to use as an adjunct? 5.What would be the appropriate means to ensure that implementation of the divestiture is effective?