FOR EDUCATIONAL USE ONLY

E.C.L.R. 2002, 23(9), 445-453

European Competition Law Review

2002

Article

A WORLD COMPETITION LAW AS AN ULTIMA RATIO

Andreas Geiger.

Wolfgang Von Meibom.

Copyright (c) Sweet & Maxwell Limited and Contributors

Case: General Electric / Honeywell (COMP/M.2220) [2001] OJ C46/6 (CEC)

Subject: COMPETITION LAW
Keywords: Competition law; Cooperation; Harmonisation; Uniform laws
Abstract: Arguments for uniform worldwide competition law and possible solutions, including
code of international competition rules, bilateral or multilateral agreements and harmonisation.

*445 Introduction

Last summer the debate on the creation of a uniform worldwide competition law suddenly
erupted again among legal practitioners--a debate which by this time appeared to have become
rather theoretical in nature. [FN1] The reason for its resurgence was the European Commission's
decision in July 2001 not to approve the merger of the two U.S. corporations General Electric
(GE) and Honeywell. [FN2] contrary to the decision of the Antitrust Division of the U.S.
Department of Justice. This would have been the biggest ever merger of two industrial
companies.
Yet it was not to be. Indeed, this was the first time that the European Commission quashed a
merger of two U.S. companies that had already been approved in the United States. It did so
despite the intensive consultations and the good working relationship between the U.S.
Department of Justice and the European Commission's Directorate-General of Competition.
[FN3] Unlike the U.S. Department of Justice, the European Commission presumed that the
merger would result in the strengthening of a dominant position. The merger of GE's financial
strength and vertical integration in aircraft purchasing, financing and leasing activities and
Honeywell's leading position in aircraft engines and other markets was seen as particularly
critical. The Commission took the view that as a corporation of considerable financial strength,
GE could succeed in driving other competitors from the market in the long term if GE's leasing
company GECAS were to buy solely aircraft equipped with Honeywell avionics and other
Honeywell components. The Commission considered the aviation and aerospace sectors to be
affected, especially the markets for jet engines, avionics, non-avionics and engine starters, as
well as the industrial systems sector and more particularly the market for marine gas turbines.
The need for a World Competition Law

The GE/Honeywell case will not be the last of its kind. On the contrary, the question of
creating a uniform worldwide competition law will become more and more pressing over time.
Problematic cases of competition law such as the above are set to increase in a world of ever
closer economic ties. This is why in its Green Paper of December 11, 2001 on the review of the
European Merger Regulation, the European Commission in Brussels also voted in favour of the
creation of a uniform worldwide standard. [FN4]
Two parallel developments are behind this. The first is the involvement of an ever-greater
number of competition authorities across the globe. The reason for this is that 90 of the world's
200 sovereign states have now introduced their own competition laws. [FN5] Another 20
countries are planning such competition regulations. By comparison, a mere 50 countries
worldwide had their own competition laws [FN6] 10 years ago.
On the other hand, the trend towards the globalisation of markets is forcing the world's large
corporations to engage in ever greater and further reaching *446 transactions. [FN7] As a logical
consequence, competition authorities are faced with ever more extensive takeover and merger
cases. Germany's Monopoly Commission already notes a "trend towards mega mergers" in its
thirteenth main report for the year 1998/99. [FN8] Until the GE/Honeywell case the existing
systems of competition law were capable of dealing with the developments--sometimes well,
sometimes not so well, but generally satisfactorily all in all. To some extent this was the case
because the approval of the competition authorities in the United States and the European Union
was of decisive importance for global mergers. [FN9] At least sensational discrepancies of the
above scale had not previously occurred. Mergers approved by the U.S. Department of Justice
were not blocked by the European Commission-- and vice versa. An example from the more
recent past is the merger of Boeing and McDonnell Douglas [FN10] approved by the European
Commission in 1997, although approval was subject to certain conditions and considerable
concerns were expressed. In this case the Commission followed the Americans' example, though
it must be added that the United States had announced a transatlantic trade war should the merger
not be approved. [FN11] Hence it is quite possible that the European Commission considered the
GE/Honeywell case not only in terms of competition law but also in emancipatory terms. This is
the reason why the U.S. Secretary of State for Treasury Paul O'Neill accused the European
Commission of exceeding its powers. [FN12]
However, such divergent decisions by different authorities in the same case create serious
problems for the companies involved. Quite apart from companies making the wrong business
decisions and suffering reputational damage as a result of such unsuccessful deals, failed mergers
also occasion considerable and useless costs. Honeywell, for instance, put the toll of the failed
merger with GE incurred by its company alone at US$42 million in July 2001. [FN13]
Nonetheless, a more serious problem is the lack of legal certainty brought about by such
decisions. In cases such as the above it is virtually impossible for merging companies to judge
the likelihood of success and the risks of their proposed merger. [FN14]
Incidentally, evaluating global cartel agreements poses similar problems to those found in
merger control legislation. This is shown by the so-called "vitamin cartel" proceedings. In this
case the European Commission and the U.S. competition authority did in fact agree in their
assessment. Following the U.S. antitrust authorities, the European Commission fined the
pharmaceutical companies involved in the vitamin cartel a record ##855.22 million [FN15] in
November 2001. However, situations can arise at any time in which divergent decisions by
different competition authorities leave the same company faced with a cartel agreement which is
approved or even given political support in one country and punished by fines in another. An
even more problematical case is when the competition authorities come to different conclusions
regarding business cooperations.

Possible solutions

Creation of a World Competition Law

At first sight, the simplest and also most radical approach to solving the conflicts discussed
above would be to create a uniform World Competition Law. However, this raises many
questions.

A uniform code of international competition rules

The first question would be which rules of competition law should be included in a uniform
code. Probably the most striking example is the debate in the European Union over whether
genuine criminal sanctions should be introduced such as those found in U.S. antitrust *447 law.
[FN16] Without such sanctions it would probably prove impossible to obtain the agreement of
the United States to a uniform international competition law. However, the concept of criminal
sanctions in competition law is so alien to many legal systems that even the European
Commission did not pursue the matter any further during its extensive White Paper discussions
on a reform of Articles 81 and 82 E.C. The different legal cultures of the countries that would
have to be co-ordinated in this case make it appear unlikely that an agreement could be reached
at this level.
As the GE/Honeywell case shows, there is also controversy as to what is the relevant
criterion for blocking a merger in global merger control. The European Commission and most
E.U. Member States consider whether a proposed merger would create or strengthen a dominant
market position. The United States, on the other hand, as well as Canada and Australia, disallow
mergers that would result in a "substantial lessening of competition". [FN17] However, this
appears not to have been the deciding factor in the GE/Honeywell case. Nonetheless, the
European and U.S. competition authorities disagree on the extent to which their differing views
are due to different fundamental concepts. In any case, the U.S. authority investigated the
merger's effects on consumers who could expect lower prices from the possibility of pooling
orders. The European Commission, in contrast, stressed the impact on competitors who could be
driven from the market in the long term. The U.S. authorities, in turn, considered such long-term
effects feared by the Commission to be excessively speculative. [FN18] While it does not appear
impossible for an agreement to be reached on a uniform criterion for blocking mergers, this
example shows that consensus is still lacking on many issues.
The possible common set of rules raises many questions other than the examples discussed.
The debates on the creation of standards of European law--whether or not related to competition
law--have shown time and time again that the attempt to harmonise or unify law always bears the
very real risk of consensus only being reached at the lowest common denominator. [FN19] It has
been noted quite rightly before that this risk increases the more contracting parties have to be
accommodated. [FN20] Hence it is impossible to predict how a uniform worldwide standard--
even for such a narrowly delineated legal sphere as competition law-- is to be found.
Implementation of a World Competition Law

Assuming that agreement can be reached on a set of competition laws, the next question is
how to organise the practical application and enforcement of a World Competition Law by the
authorities and courts. Here, the questions are similar to those discussed in the debate on the
European Commission's White Paper on Articles 81 and 82 E.C. [FN21]

Implementation by national authorities and courts

The first option would be for a World Competition Law to be applied by the existing national
authorities and courts. The advantage here is that a new infrastructure would not first have to be
established since existing structures could be used. In addition, a solution of this nature would
not curtail the existing competences of the national competition authorities to any extent and
would at the same time make use of their knowledge of the regional situation in the national
markets under consideration. This kind of solution would also appear more feasible than
centralising competences as national sovereignty would be less affected. Again, the experience
gained from the White Paper debate should be taken as a point of departure.
However, such a decentralised approach makes it difficult to master the problems that
companies have with competition law. In the debate on the reform of European competition law
the European Commission's Directorate-General of Competition quite rightly pointed out the
ensuing problems. [FN22] As is the case on a European level, an international competition law
would be exposed to the risk of inconsistent application of the uniform set of rules around the
world. This risk emanates from the different directions in which international competition would
develop under the influence *448 of decisions by competition authorities and especially case law
judgments of national courts. Such a development would hardly bring about greater legal
certainty for the companies concerned than the status quo. Despite a uniform set of rules
international competition law would inevitably develop differently in each country. Without an
appropriate corrective the uniformity of the legal system would be lost in the long run. [FN23]
Another question in connection with this solution is how binding the decisions by national
authorities and courts applying the international competition law would be. If a decision were
only binding for the national territory, companies would not have gained much. They would still
be faced with the problem of multi-jurisdictional filing, i.e. the odious task of filing for
individual approval of the proposed merger in all countries concerned. However, if national
decisions were to have binding effect worldwide the risk of so-called forum shopping would be
likely to arise. [FN24] A race would break out in the search for the "best" authority or judge for
the merger. This would see companies shopping around for competition authorities which apply
the World Competition Law more "laxly" than others. In extreme cases, this could even be those
competition authorities and courts which do not base their decision to approve the merger on
competition considerations alone. In light of the rapid spread of competition law around the
world, this is a very real danger given the inexperience of many new authorities and courts.
A possible solution to this conflict would be to create an additional corrective. However, this
can only mean the creation of a supranational entity if such a corrective is to have any effect.

Implementation by a World Competition Authority or World Competition Court

 A possible corrective could be the creation of a World Competition Court which would
monitor the uniformity of international competition law after completion of the proceedings
before the national authorities and courts.
A World Competition Court could ensure the unification of law and prevent the problem of
forum shopping, at least in extreme forms. Hence, a solution such as this could make it possible
to give the decisions of national courts worldwide validity as a monitoring authority would be in
place. However, it would not be necessary to create a "super court". It would be no problem to
draw on the European Union's experience with the European Court of Justice in Luxembourg.
This system of preliminary rulings on referrals by the national courts is less drastic and has
proven to work very well. Most competition proceedings before authorities and courts would
thus continue to be held at national level.
Another possible corrective would be to create a centralised World Competition Authority
modelled on the Directorate-General of Competition of the European Commission in Brussels.
However, the difference between such a World Competition Authority and the European
Commission would be that a World Competition Authority would not have the backing of a
political legal community of the nature of the European Union. It is only too easy to picture the
debates over the curtailment of national sovereignty that this would give rise to. Nonetheless, a
centralised World Competition Authority building on the existing decentralised structure of
national competition authorities is a conceivable approach. This World Competition Authority
could use the existing national competition authorities as "dependencies" so as not to lose sight
of the regional markets of relevance for decisions. An added advantage would be that the
officials of the national competition authorities with their precise knowledge of their respective
national market would decide on each case. To ensure the uniform application of a World
Competition Law in the various countries it would suffice for the head of the national
competition authority to be answerable to the World Competition Authority, i.e. appointed with
the latter's consent and placed under its control.
Finally, a combination of the two correctives specified above could be considered, i.e. the
creation of both a World Competition Authority and a World Competition Court which would
work together. Given these possible correctives, various solutions to the implementation of a
World Competition Law are conceivable.
To use the example of a possible implementation in Germany, this could mean, for instance,
the Federal Cartel Office or the European Commission having full responsibility for World
Competition Law in the competition authorities' proceedings. In civil court matters, on the other
hand, certain specialised competition chambers of the German district courts would have
jurisdiction. An appeal against the decision of a national or of the European competition
authority could then--to stay in the authority scenario--be lodged with the World Competition
Authority. But one could--to move to the court scenario again--also think of an appeal for both
cases before the competition authorities *449 and the civil courts to an appellate court with
national jurisdiction for all competition issues--such as it is already the case in Germany for
proceedings before the Federal Cartel Office, in which the Dusseldorf Higher Regional Court has
jurisdiction. In turn, an action against a decision reached in an appellate court procedure could
then be brought before the World Competition Court, while in the proceedings before the
national competition court--i.e. in this case the Dusseldorf Higher Regional Court--or before the
European Court of Justice a referral to the World Competition Court along the lines of Article
234 E.C. could be a possible solution. [FN25]
Consensus on a World Competition Law

As the debate over the European Commission's White Paper on Articles 81 and 82 E.C. has
shown, a far-reaching reform of competition law is not easy to achieve, even in a legal
community such as the European Union. [FN26] This is the point which will make the creation
of a World Competition Law difficult. It appears improbable that the various countries will agree
in the foreseeable future to cede such a large portion of national sovereignty as would be
required for each of the options suggested. [FN27] Even if the example of the European Union
shows us that it is not impossible for nation states to relinquish sovereignty in pursuit of a
common goal, such an undertaking will be much more difficult on a global scale. Recalling the
most recent WTO rounds makes it clear that such an ambitious project will not be accomplished
in the near future. [FN28]

Alternatives to the creation of a World Competition Law

Bilateral agreements

The first step would no doubt be to extend and improve existing options. This could include
further bilateral agreements as well as the enhancement of informal contacts, for instance
modelled on the Agreement between the European Communities and the Government of the
United States of America regarding the application of their competition laws of 1991. [FN29]
This Agreement primarily provides for:
• sharing information about cases that are being dealt with by both competition authorities
and that affect important interests of the other party, and exchange of information relating to the
application of the parties' respective competitive rules;
• co-operation and co-ordination of the actions of both competition authorities;
• a comity procedure by virtue of which each party undertakes to take into account all
important interests of the other party;
• a positive comity procedure by virtue of which either party can invite the other party to take
appropriate measures regarding anti-competitive behaviour implemented on its territory and
which affects the important interests of the requesting party.
In practice this co-operation between the European Commission and the U.S. Department of
Justice on specific cases mostly involves merger cases. The possibility of sharing confidential
information between the two authorities is an important part of the co-operation. Requests for
consent to the exchange of information between the two parties have since become routine.
Substantive co-operation by the competition authorities tends to focus on the definition of the
relevant market, the assessment of the likely competitive effects of the proposed operation on the
markets, and the appropriateness of any remedies proposed by the parties. [FN30] However, the
positive comity procedure has only been used in one case to date: in the review of the
computerised reservation system "Amadeus". [FN31]
The European Commission co-ordinates its activities with the United States and the E.U.
accession candidates as well as with numerous other countries. An agreement with the
Government of Canada regarding competition *450 laws entered into force in June 1999. Co-
operation with the Canadian competition authorities includes both specific cases and general
issues of competition law. This is supplemented by trilateral co-operation among the European
Union, Canada and the United States in some cases. Otherwise co-operation is focused on Japan,
the countries in the Mediterranean, the European Economic Area, the OECD and South America,
as well as Russia and the other CIS countries. [FN32]
With these bilateral arrangements it would be important for responsibilities to be defined as
far as possible to ensure that only the most suitable authority considers the case. The advantages
of such a solution would be the extended investigation powers for the competition authorities and
better means of enforcement. Establishing sole competences could also significantly reduce the
high transaction costs of multi-jurisdictional filings for companies. On the other hand, a solution
of this nature would also cause problems, such as data protection issues in connection with
administrative assistance. [FN33] Given the steadily growing number of competition authorities
around the world, it is clear that a very large number of state treaties would have to be signed.
Each country would already have to conclude bilateral agreements with 90 other states. This
would be no less complex and time-consuming than a multilateral agreement. Moreover, it will
only be possible to establish sole competences between the competition authorities of countries
which have similar competition regimes and therefore a high degree of confidence in each other.
[FN34]
Nor will it be possible to achieve a legal basis for the enforcement of decisions by
competition authorities, at least not based on the existing bilateral agreements. It is true that the
bilateral agreement between Australia and New Zealand authorises the competition authorities of
both states to demand information from companies and citizens of the other country. The courts
of Australia and New Zealand are further entitled to issue orders to persons and companies of the
other country subject to fines in the event of non-compliance. [FN35] However, this is due to the
harmonisation of the two nations' competition laws. [FN36] It is unlikely that this will be able to
be achieved between other states.
In the end, bilateral agreements are no guarantee of success. The GE/Honeywell case has
shown only too well that competition authorities can reach different decisions despite having
bilateral agreements. This demonstrates the limitations of what can be achieved with bilateral
agreements as long as the law is not harmonised.

Multilateral agreements

Multilateral agreements below the level of a World Competition Law are an alternative to
bilateral agreements.

Procedural law

It would be possible, for instance, to forego the harmonisation of substantive law and to
make do with an international procedural law on a multilateral level. The aim of introducing such
an international procedural law would be to establish procedures for the application and
enforcement of national law. In this context procedures in parallel proceedings could be
standardised, rules established for co-operation on procedures and responsibilities clarified. This
would mean, for instance, that all signatory states would standardise their filing procedures and
review periods in competition proceedings. Decisions made on this basis could be enforced
without supranational authorities. The participating states could, for instance, agree to deny civil
legal protection to proposed mergers that infringe a multilateral agreement. The related degree of
legal uncertainty would, in all likelihood, stop companies from going ahead with transactions
prohibited by competition law. [FN37]
 Another approach would be to treat the effects of mergers and cartel agreements on foreign
markets in the same manner as the effects on domestic markets. This would put an end to the
domestic common practice of exempting exports from competition law with each competition
authority only considering its own area of responsibility. This point is crucial if even just a
minimum of harmonisation is to be achieved, and has been rightly termed the "crunch question
of international competition law". [FN38] It is still the case that national states only make use of
competition law to protect their domestic markets. If a benefit is seen for domestic companies
which only restricts competition outwith the domestic markets, the national state does not subject
*451 such companies to any competition law restrictions. In this respect, competition law also
follows the "not-in-my-backyard" principle. Competition should, however, be recognised as a
fundamental principal of a globalised market economy. [FN39] In practice, a filing procedure
standardised by multilateral agreements would mean considerable relief for companies. The
standardisation of review periods would make the time-frame required to consummate a merger
simpler to calculate. It would be much easier to obtain international consensus on procedural
issues than on questions of substantive law as the loss of sovereignty would not be so great. In
addition, the scope of material that would have to be included in a contractual set of rules would
be smaller.

Minimum harmonisation

Another alternative to the creation of a World Competition Law would be harmonisation.

However, this could very well be restricted to setting certain minimum standards of substantive
law, i.e. agreeing on the lowest common denominator. One such example is the "Draft
International Antitrust Code". [FN40] Reducing the subject of negotiations to basic fields of
substantive law is no doubt an easier way of achieving such minimum harmonisation than
devising a comprehensive set of rules for substantive competition law. Yet even an agreement on
minimum standards requires a high degree of willingness to reach a consensus on the part of the
countries involved.
One argument that is frequently used against the minimum harmonisation of competition law
is that harmonisation would eliminate the competition of the systems, i.e. that competition would
no longer be available as a means of experimentation. Hence it is forecast that a legal system that
is not exposed to competition will not improve as there are no reference models. [FN41] This is
based on the idea of competition laws competing with each other around the world, allowing the
best solution to evolve, as companies will shift their operations away from countries whose legal
regimes are particularly costly. It is thought that this would encourage countries to evaluate the
benefit of such legal systems and to maintain costly systems only on rational grounds.
Harmonisation is rejected on the basis of these considerations. [FN42] This theory, however, was
originally developed for matters of labour, social and tax law. [FN43] There is doubt as to
whether it can really be applied to competition law. This is because companies generally cannot
escape competition laws by shifting locations as in most legal systems what is important is not
the company's location but whether a proposed transaction restricts competition on the local
market. [FN44]

Forums and organisations

Perhaps the most feasible option in the near future is to extend competition forums and
organisations. [FN45] Although such institutions do not have any clout when it comes to
unifying international competition standards, they can reach a consensus and are flexible. Such
international forums and organisations, also known as the "club solution", [FN46] contribute
especially to the exchange of ideas and experiences and thus ultimately to a gradual
harmonisation of the different sets of standards.
• World Trade Organisation: The WTO Ministerial Conference in Singapore in 1996 raised
the issue of international competition law and set up a working group. Talks on competition rules
were then agreed at the 2001 Ministerial Conference in Doha. [FN47] However, consensus on
the modalities of any negotiations to take place during the next world trade round still needs to
be reached at the fifth Ministerial Conference in 2003. As yet it is impossible to tell whether
these negotiations will produce results. In the meantime a WTO working group will continue to
work on drawing up core principles of international competition policy, [FN48] but *452 even
the acknowledgment of the need for an international competition policy is a significant step
forward. The inclusion of competition policy in the next world trade round was also one of the
central demands of the European Commission. [FN49] The competition rules in international
trade law are still rather rudimentary. For instance, paragraph 8(2) of the TRIPS Agreement
recognises the rights of contracting states to adopt measures against the anticompetitive
exploitation of intellectual property rights. However, agreement has yet to be reached on the
nature of such restrictive practices and abuses. The GATS includes a similarly rudimentary
provision. The Draft International Antitrust Code is also to be implemented in the context of the
WTO. Apart from the WTO rounds, which can serve as a forum for the implementation of a
multilateral competition agreement, the existing dispute settlement procedure may be useful for
the implementation of a World Competition Law. [FN50]
• OECD Global Forum on Competition: A perhaps more important step was the
establishment of the OECD Global Forum on Competition. This forum is one of eight global
forums of its kind that were set up last year. [FN51] It held its inaugural meeting in Paris on
October 17 and 18, 2001. Representatives of the 30 OECD Member States and the European
Union as well as from 21 non-OECD countries will convene in this forum on a regular basis.
Like other OECD activities this will be an intergovernmental forum, with the participation of
regional and international organisations such as the World Bank. The forum has also pledged to
involve representatives of trade and industry and consumers. [FN52] One problem is that the
OECD tends to focus on the developed world, which means that the developing countries may
not receive sufficient consideration. Moreover, the OECD's function is more to co-ordinate
national economic policy and exchange information than to propagate legal norms. [FN53]
• International Competition Network: Probably the most promising initiative at present is the
International Competition Network (ICN) which was founded on October 25, 2001. [FN54]
Following its creation a meeting of representatives from the competition authorities of more than
a dozen countries was held at the beginning of February 2002 to prepare the network's first
annual conference in Italy on September 28 and 29, 2002. The ICN already has more than 40
members and is open to all competition authorities. When the network was founded, the
representatives to the ICN from the competition authorities belonging to its steering committee--
these being the United States, the European Union, France, Germany, Japan and Australia--
announced the forum's intention to concentrate in four working groups on the following two
areas: multi-jurisdictional mergers and antitrust issues in emerging countries. [FN55]
The most important of these four working groups is the Merger Review Working Group
headed by the Deputy Attorney-General of the Antitrust Division of the U.S. Department of
Justice. The Merger Review Working Group itself is divided into three sub-groups which met
mid-February in Paris. The first sub-group, responsible for merger notifications and procedures,
is chaired by the U.S. Federal Trade Commission. Apart from the United States, the members of
this working group are representatives from the competition authorities of Australia, the
European Union, Germany, France, Japan, South Korea, Mexico and South Africa. This working
group will deal with the common filing problems of thresholds, deadlines and notification fees.
A second sub-group will consider the different criteria used for reviewing mergers, especially
between the United States and the European Union. The third sub-group is headed by the Israeli
competition authority and is to examine the different investigation powers of the competition
authorities in the various countries. The focus here is on preserving and evaluating evidence.
The objective of this group and the other three working groups of the ICN may be
summarised as the development of best practices. One of the top priorities is the harmonisation
of international merger control procedures discussed above. The ICN will work on a project-
oriented and informal basis. As in the OECD forum, there is to be *453 consultation of industry
and consumer associations and competition law practitioners who are independent of
competition authorities. This approach is intended to and will, no doubt, help to bring more
practical experience into the best practices being developed. [FN56]

Conclusion

The current situation is certainly unsatisfactory, not merely from an academic perspective,
but especially for the big corporations around the world. As desirable as a World Competition
Law may be from the economy's perspective, its realisation in the short term and in one rush
seem to be impossible. Therefore, the alternative solutions discussed above need to be taken up
and carried on. Some of the current problems can no doubt be solved by bilateral or multilateral
agreements, partial harmonisation and improved international co-operation. This co-operation
should create a common global understanding of the basic rules of competition law, at least in
the medium term, which would go on to form the basis on which to establish common minimum
standards of competition law. [FN57] Hence the creation of a World Competition Law can only
be a slow, painstaking process. Nonetheless, the need for improved co-operation in international
competition law now appears to have been acknowledged universally, at least since the
GE/Honeywell case. This co-operation is the point from which to continue the debate--without
losing sight of the future objective of a uniform World Competition Law.

FN Wolfgang von Meibom is Rechtsanwalt and Chief Executive Officer (CEO) of Andersen
Legal Germany. Dr Andreas Geiger, M.E.S. is Rechtsanwalt at Andersen Legal in Brussels. The
authors would like to thank Philipp Behrendt LL.M. for his assistance.

FN1. Basedow, NJW (New Legal Weekly) 1989, 627; see also Meessen, WuW (The Economy
and Competition) 2000, 5 (5); Fikentscher and Heinemann, WuW 1994, 97 (98).

FN2. cf. Gotakos, Petit, Garnier and De Luyck, "General Electric/Honeywell--An insight into the
Commission's investigation and decision" (2001) 3 Competition Policy Newsletter 5 (http://
europa.eu.int/comm/competition/publications/cpn/cpn2001_3.pdf); "How Monti turned deal into
a flight of fancy", Financial Times, July 5, 2001.
FN3. European Commission, Report from the Commission 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 January 1, 1999 to December 31, 1999, COM (2000) 618,
3; Schwarze, WuW 2001, 1191 (1201).

FN4. European Commission, Green Paper on the Review of Council Regulation (EEC) No.
4064/89, COM (2001) 745/6, 42.

FN5. James, "International Antitrust in the 21st Century: Co-operation and Convergence",
address before the OECD Global Forum on Competition, Paris, October 17, 2001
(http://www.usdoj.gov/atr/public/speeches/9330.htm).

FN6. Basedow, Weltkartellrecht (International Antitrust Law), 1998, 7.

FN7. Freytag and Zimmermann, RabelZ (Journal for Foreign and International Private Law) 62
(1998), 38 (39); Fikentscher and Heinemann, WuW 1994, 97 (98); Wiedemann in Wiedemann,
ed., Handbuch des Kartellrechts (Handbook of Antitrust Law) (1999), § 5 Rd. 1; European
Commission, Towards an international framework of competition rules, COM (1996) 284 (http://
www.europa.eu.int/comm/competition/international/com284.html).

FN8. Monopolkommission (German Monopoly Commission), "Wettbewerbspolitik in

Netzstrukturen (Competition Policy in Network Structures)", 13th main report 1998/99.

FN9. ibid. p. 427.

FN10. 97/816/EC, July 30, 1997 [1997] O.J. L336/16.

FN11. cf. "Keine Angst vor Giganten (No Fear of Giants)", Frankfurter Allgemeine Zeitung,
September 29, 2000, p. 13.

FN12. "O'Neill hits EU body for blocking GE merger", Washington Times, July 3, 2001, p. 11.

FN13. Honeywell press release, July 24, 2001 (http://

www.honeywell.com/c2kbeans/docs/96/hpr2q2001.pdf).

FN14. Immenga in Fikentscher and Heinemann, Draft International Antitrust Code (1995), p.
9(11).

FN15. European Commission press release, November 21, 2001, "Commission imposes fines on
vitamin cartels", COMP/37.512.
FN16. Monopolkommission, "Kartellpolitische Wende in der Europäischen Union? (Turning
Point in Antitrust Policy in the European Union?)", 28th special report of the German Monopoly
Commission, 1999, p. 28; Basedow, Weltkartellrecht (International Antitrust Law) (1998), p. 10;
Rittner, Wettbewerbs und Kartellrecht (Competition and Antitrust Law) (6th ed., 1999), Sec. 14,
no. 2 and further references.

FN17. Bundeskartellamt (Federal Cartel Office), "Das Untersagungskriterium in der

Fusionskontrolle (The Blocking Criterion in Merger Control)", discussion paper
(http://www.bundes kartellamt.de/diskussionsbeitrage.html); Scheidgen and Sturhahn, WuW
2002, 31.

FN18. James, loc. cit.

FN19. Monopolkommission, op. cit. p. 427.

FN20. Meessen, WuW 2000, 8; Wolf, Handelsblatt, September 30, 1999, 65.

FN21. Mestmäcker, EuZW (European Economic Law Journal) 1999, 523; Deringer EuZW 2000,
5; Geiger EuZW 2000, 165; Monopolkommission, "Kartellpolitische Wende in der Europäischen
Union (Turning Point in Antitrust Policy in the European Union)", special report 28, see
especially p. 65; Lässig, Dezentrale Anwendung des europäischen Kartellrechts (Decentralised
Application of European Antitrust Law) (1997).

FN22. European Commission, White Paper on modernisation of the rules implementing Articles
81 and 82 of the EC Treaty, p. 26.

FN23. For the debate in Europe see: Lässig, Dezentrale Anwendung des europäischen
Kartellrechts (Decentralised Application of European Antitrust Law) (1997), p. 79; Geiger,
EuZW 2000, 165 (168).

FN24. For the European debate see European Commission, White Paper on modernisation of the
rules implementing Articles 81 and 82 of the EC Treaty, p. 27.

FN25. For the European debate see Geiger, EuZW 2000, 165 (169).

FN26. Mestmäcker, EuZW 1999, 523; Deringer, EuZW 2000, 5; Geiger, EuZW 2000, 165;
Monopolkommission, "Kartellpolitische Wende in der Europäischen Union (Turning Point in
Antitrust Policy in the European Union)", special report 28; Lässig, op. cit.

FN27. Basedow, Weltkartellrecht, 1998, 104.

FN28. Marsden, "Tune in to the International Competition Network" (http://
www.sweetandmaxwell.co.uk/online/newslet/incm/200112.cfm); Immenga, op. cit. p. 9(10).

FN29. Agreement between the European Communities and the Government of the United States
of America regarding the application of their competition laws [1995] O.J. L95/47.

FN30. European Commission, Report from the Commission 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
January 1, 1999 to December 31, 1999, COM (2000) 618, 3.

FN31. Amadeus is owned by Air France, SAS, Iberia, Lufthansa and Continental. CRS Sabre,
which is operated by American Airlines, filed a complaint with the U.S. Department of Justice,
which requested the Commission to examine the matter. The case was settled in July 2000 after
Air France had agreed to adhere to a code of fair conduct, and granted Sabre and other systems
the same conditions as had been granted to Amadeus. Cf. European Commission Report, ibid. p.
6.

FN32. European Commission, Competition Policy in the European Community, XXX: Report on
Competition Policy, 103; for bilateral co-operation on a European level see the Commission's
website: http:// www.europa.eu.int/comm/competition/international/bilateral.

FN33. Monopolkommission, "Wettbewerbspolitik in Netzstrukturen (Competition Policy in

Network Structures)", 13th main report 1998/99, p. 426.

FN34. Böge and Kijewski, RIW (Law of the International Economy) 2001, 401 (406).

FN35. Basedow, Weltkartellrecht 1998, 36; the agreement between Australia and New Zealand
is available at http://www. austlii.edu.au/au/other/dfat/treaties/1988/18.html.

FN36. Basedow, ibid. 43.

FN37. Wolf, Handelsblatt vom 30. September 1999. Wolf, Handelsblatt, September 30, 1999,
67.

FN38. Basedow, Weltkartellrecht, 1998, 48.

FN39. Freytag and Zimmermann, RabelZ 62 (1998), 38 (51); Basedow, Weltkartellrecht, 1998,
48; Immenga, op. cit. p. 12.
FN40. Fikentscher, Außenwirtschaft (External Economic Relations) 49 (1994) 281; Fikentscher
and Heinemann, WuW 1994, 97; the text of the Draft International Antitrust Code is printed in
Fikentscher and Heinemann, Draft International Antitrust Code (1995), pp. 53 et seq.

FN41. "Die Globalisierung forciert den internationalen Systemwettbewerb (Globalisation

Accelerates International Competition of Systems)", Frankfurter Allgemeine Zeitung, September
11, 1999, p. 15.

FN42. Meessen, WuW 2000, 5 (15); Kerber, Jhb. f. Neue Politische Ökonomie
(Year Book for New Political Economics) 17 (1998), 199 (224); Monopolkommission,
"Wettbewerbspolitik in Netzstrukturen (Competition Policy in Network Structures)", 13th main
report 1998/99, p. 428.

FN43. Kerber, ibid.

FN44. cf. Basedow, Weltkartellrecht, 1998, 56.

FN45. Böge and Kijewski, RIW (Law of the International Economy) 2001, 401 (408).

FN46. European Commission, "Towards an international framework of competition rules",

COM(96) 284 (http:// www.europa.eu.int/comm/competition/international/com284.html); Wolf,
WUW 2002, 109.

FN47. WTO, Doha ministerial declaration, (WT/MIN(01)/DEC/1), (http://

www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm£interaction).

FN48. cf. WTO, Report (2000) of the Working Group on the interaction between trade and
competition policy to the General Council, WT/WGTCP/4 (http://
www.wto.org/english/tratop_e/comp_e/wgtcp4.doc).

FN49. European Commission, "Competition Policy makes it into the Doha Agenda",
Competition Policy Newsletter (1) February 2002, 27.

FN50. Fikentscher and Heinemann, WuW 1994, 97(101); Immenga, op. cit. p. 11(14); Basedow,
Weltkartellrecht, 1998, 89.

FN51. OECD online, Global Forum on Competition (http://

www1.oecd.org/daf/clp/global_forum.htm).

FN52. ibid.
FN53. Basedow, Weltkartellrecht, 1998, 89.

FN54. ICN, About the ICN (http:// www.internationalcompetitionnetwork.org/news.html);

European Commission, "The creation of an International Competition Network", Competition
Policy Newsletter, (1), February 2002, 25 (http://
europa.eu.int/comm/competition/publications/cpn/cpn2002_1.pdf); Marsden, "Tune in to the
International Competition Network" loc. cit.

FN55. ICN, n. 54 above.

FN56. ICN, ibid.; European Commission, n.54 above; Marsden, "Tune in to the International
Competition Network" loc. cit.

FN57. Schwarze, WuW 2001, 1191, (1202).

ECLR 2002, 23(9), 445-453

END OF DOCUMENT