Competition authorities in both the United States and European Union have adopted policies for investigating mergers that occur outside their respective jurisdictions but have impacts on their respective economies. Under the U.S. Sherman Act, antitrust law can be applied when a merger between two foreign companies has a “direct, substantial and reasonably foreseeable impact on U.S. commerce,” an assertion validated by the U.S. Supreme Court.87 The European Court of Justice, similarly, has validated the extension of Articles 81 and 82 to activities that occur outside the European Union that nonetheless affect the common market.88 This extraterritoriality of jurisdiction has prompted U.S. and EU competition authorities to try to cooperate by sharing information, and attempts have been made to coordinate competition policies when possible.
In 1991, the United States and European Union entered into an agreement that attempted to reconcile national interests with the enforcement of competition policy. The Executive Agreement with the European Community of September 1991 officially went into force in the European Union in 1995.89 There were five main aspects to the agreement:
“The U.S.-EU Agreement seeks to reinforce competition policies by: a) requiring each party to notify the other of transactions that may affect important interests; b) requiring the antitrust authorities to meet on a regular basis to exchange information regarding pre-merger review, subject to confidentiality agreements; c) allowing coordinated investigations by both parties, when deemed mutually advantageous; d) specifying means for determining when either government might defer enforcement responsibility to the other; and e) requiring consultation between the U.S. and EU competition authorities.”90 The Boeing-McDonnell Douglas merger provided the first hard test of the new agreement. Would differences in competition policy and divergent assessments of the effects of a merger lead to agreement or friction between U.S. and EU governments?
The Boeing-McDonnell Douglas merger was contentious almost from the beginning. Even before formal notification of EU authorities, EU Competition Commissioner Karel van Miert announced that the merger would be “complex and problematic” and approval would be contingent on substantial concessions by Boeing.91 In the United States, jurisdiction over the Boeing-McDonnell Douglas merger was granted to the Federal Trade Commission, which issued its final ruling on July 1, 1997. The investigation included a team of FTC attorneys, economists and accountants that interviewed officials at over 40 airlines (U.S. and foreign) and other commercial aircraft manufacturers. The FTC concluded that the merger “would not substantially lessen competition or tend to create a monopoly in either defense or commercial aircraft markets.”92 The FTC acknowledged the widespread view that because commercial aircraft manufacturing occurred in a global market, the United States needed “a powerful firm to serve as its ‘national champion,’” yet stated such rationale played no part in its decision. Instead, the FTC argued that McDonnell Douglas could not conceivably remain a competitive force in the commercial aircraft industry. The FTC cited McDonnell Douglas’ low relative rates of investment in new technology, its meager product offerings and interviews with many airline executives who said they would not consider purchasing McDonnell Douglas aircraft in the future. U.S. antitrust officials concluded that the combination of Boeing and McDonnell Douglas would not harm consumers because McDonnell Douglas was no longer a competitive force in the market for commercial aircraft. However, the FTC stopped short of calling McDonnell Douglas a “failing firm,” pointing to the firm’s modest backlog of commercial aircraft orders and manufacturing assets, as well as the legal need to first find a merger to be anti-competitive before employing a failing firm defense of the merger.93 On the issue of Boeing’s long-term exclusive supply contracts with American, Delta and Continental, the FTC found the agreements to be “potentially troubling.” It stated it would monitor the anti-competitive effects of these contracts and any future contracts.94 Commissioner Mary L. Azcuenaga, in a dissenting statement, expressed surprise that the contracts were mentioned at all, as they were agreements entered into by Boeing alone, wholly independent of the merger agreement. The arrangements would account for 11 percent of the commercial aircraft market, “well below any level that should be of concern” to the Commission, she argued.95 Azcuenaga disagreed with her colleagues also on the issue of McDonnell Douglas’ future effect on competition, arguing that as long as McDonnell Douglas continued to compete for sales of commercial aircraft, it was exercising “competitive constraint.” Azcuenaga concluded that the merger was a “classic case” for an FTC challenge under Section 7 of the Clayton Act, which prohibits mergers that substantially lessen competition or tend to create a monopoly.96 The merger, nonetheless, went unchallenged by the FTC.
With respect to the U.S.-EU agreement on competition policy, the European Commission notified the FTC of its preliminary conclusion on June 26, 1997, and asked that the FTC “take account of the European Union's important interests in safeguarding competition in the market for large civil aircraft.” While FTC Chairman Robert Pitofsky responded that the FTC would do so, the U.S. Department of Defense notified the Commission that an EU decision to block the merger would be harmful to U.S. defense interests. The Commission responded by stating that it would take the matter into consideration, but that it was more concerned about the commercial aspects of the merger than the effects of the merger on the defense industry.97 The investigation by European authorities relied significantly on the precedent of the de Havilland case in which ATR, a European joint venture, attempted to buy de Havilland, a failing Canadian producer of commuter aircraft. The merger would have increased ATR’s global market share for 40-to-59-seat commuter aircraft from 46 percent to 63 percent.98 The Commission concluded in that case that because the new company would be able to offer a fuller line of commuter aircraft, the merger would result in an unfair competitive advantage by the dominant producer.99 European observers were shocked by the FTC’s inaction on the merger, given its track record of aggressively challenging other merger cases.100 The European Commission received formal notification of the Boeing-McDonnell Douglas merger on February 18, 1997, and completed Phase I of its investigation on March 7, 1997, determining the merger raised “serious doubts as to its compatibility with the common market” and further investigation was warranted.101 The Commission issued its final ruling on July 30, 1997.
In its investigation, the Commission examined fluctuation in worldwide market share based on the total value of backlogged orders for the years 1987-1996. It found that while Airbus’ share had remained relatively constant at about 27 percent from 1989 to 1996, Boeing’s share had increased from 57 percent to 64 percent over the same period. McDonnell Douglas’ share had been decreasing steadily, the investigation found, from 19 percent in 1988 to about 6 percent in 1996.102 On the issue of potential new entrants to the commercial aircraft industry, Boeing indicated in its notification to the Commission that several potential entrants existed in Russia, India and East Asia. However, Boeing itself admitted that these entrants were likely to focus on regional jets, rather than larger commercial aircraft. Boeing also admitted that start-up costs for a firm to compete in narrow-body or wide-body aircraft would probably exceed $10 billion. The Commission thus concluded that there was little potential for new entrants in the commercial aircraft market.103 Of particular concern to the Commission were the long-term exclusive supply contracts between Boeing and American, Delta and Continental. The American deal, concluded in November 1996, called for Boeing to be the sole supplier of American aircraft until 2018. American placed an initial order for 103 aircraft worth $6.6 billion, and options for 527 more aircraft. In March 1997, a second contract with Delta, also through 2018, was inked with an initial order for 106 aircraft worth $6.7 billion and options on 528 additional aircraft. Finally, in June 1997, Boeing agreed to a 20-year contract with Continental with an initial order for 35 aircraft. In exchange for the exclusive supply contracts, Boeing would be providing purchase rights that would allow these customers to receive their aircraft in as little as 15 months, compared to 18 to 36 months normally, and price reductions on new aircraft orders.104 The Commission concluded that Boeing already held a dominant position in the commercial aircraft industry, and that its merger with McDonnell Douglas was likely to strengthen that dominant position. The basis for this conclusion took into account the addition of the “competitive potential” of McDonnell Douglas to Boeing’s existing market share, as well as the spillover effects Boeing’s commercial operations would derive from incorporating McDonnell Douglas’ defense business.105 The Commission’s investigation found that 13 of 20 airlines said McDonnell Douglas influenced the process of bidding for new orders – negotiations that resulted in better purchasing terms than if McDonnell Douglas had not been involved in the process. The effect of McDonnell Douglas’ involvement in the bidding process was quantified as a 7 percent reduction in prices.106 Despite these pro-competitive effects, the Commission concluded McDonnell Douglas was “no longer a real force in the market on a stand-alone basis,” and it was unlikely that a third party would acquire McDonnell Douglas’ commercial assets.107 By June, European authorities had drawn up a list of three principal concerns that Boeing would have to address before the Commission would consider the merger for approval. First, Boeing and McDonnell Douglas together would account for two-thirds of the commercial aircraft and 84 percent of the existing aircraft in service worldwide, prompting concerns that Boeing could exploit or neglect McDonnell Douglas customers and pressure them to purchase new Boeing aircraft.108 Second, the merger would combine the world’s largest commercial aircraft producer with the world’s largest military aircraft producer, and the Commission feared that government spending on McDonnell Douglas’ defense contracts could indirectly benefit Boeing’s commercial business. Third, the Commission flatly refused to allow the merger to proceed as long as Boeing maintained its 20-year exclusive supply contracts with American, Delta and Continental.
Boeing was thus given a deadline of June 30, 1997 – the eve of FTC approval of the merger – for submitting a formal list of remedies that would address the issues raised by the Commission. An EU advisory committee of national competition experts reviewed Boeing’s proposed remedies on July 4.109 The committee found Boeing’s concessions insufficient and recommended that the merger should be blocked without substantial changes to Boeing’s proposals.
Boeing began to formulate a new set of remedies for the Commission, with a new deadline for submission of July 23. Van Miert insisted that Boeing would exploit its relationship with McDonnell Douglas customers, arguing Boeing should spin off the spare parts division of McDonnell Douglas.110 In order to address these concerns, Boeing offered to license a third party to make spare parts for McDonnell Douglas aircraft. EU competition authorities had used such a move previously as a means to foster increased competition, particularly in the merger of Scott Paper and Kimberly-Clark, where the latter was required to license its Kleenex brand in the United Kingdom and Ireland.111 Eventually, Boeing and the Commission agreed to maintain McDonnell Douglas’ commercial aircraft operations as a separate legal company within the merged entity for 10 years.112 Boeing also agreed to provide service and spare parts to existing McDonnell Douglas customers on the same terms as its own customers and promised not to manipulate McDonnell Douglas customers.113 Van Miert’s argument that aerospace and defense R&D subsidies had exceeded the limits agreed to in the 1992 LCA agreement resulted in EU officials calling for modification of the LCA agreement, a request that was flatly rejected by U.S. officials.114 Boeing and the Commission did, however, reach an agreement on the issue of indirect subsidies from defense-related research and development. Under the agreement, Boeing would provide the Commission for a period of 10 years an annual report of government-funded R&D projects in which Boeing was participating, specifically explaining how any research would be applied to the manufacture of commercial aircraft.115 Boeing also agreed to license to other manufacturers on reasonable terms its patents acquired through government-funded research, and to report to the Commission for a period of 10 years any new patents coming as a result of government-funded research.116 As a final goodwill measure to assure the Commission it would not exploit its position, Boeing agreed not to influence or interfere with “actual or potential relationships between its suppliers and other commercial aircraft manufacturers.”117 Although the Commission may have held legitimate concerns over the compatibility of indirect state aid to Boeing with Article 87 of the EU Treaty, the examination of spillovers from defense to civil operations was unprecedented. In Amy Ann Karpel’s analysis of in-depth Commission investigations of mergers between 1993 and 1996, the Commission had “not once considered the effects of the potential spillover of state aid in the context of an investigation pursuant to the Merger Regulation.”118 While progress had been made in addressing the Commission’s first two concerns, Boeing’s 20-year exclusive supply agreements continued to be a sticking point leading up to the July 23 deadline. While the Commission maintained the agreements would have to be eliminated before it would consider approving the merger, Boeing would offer only to shorten the duration of the contracts and to eschew further exclusive supply agreements for “a given number of years.”119 Exclusive supply arrangements of the type Boeing had with American, Delta and Continental have consistently been found, by the Commission’s interpretation of Articles 81 and 82, incompatible with EU competition law.120 Industry experts were surprised that the exclusive supply contracts had become the final obstacle in negotiations between Brussels and Boeing. One, quoted in London’s Financial Times, said, “If you have a faithful customer who has been buying Boeing aircraft for years, they will continue to do so. British Airways does not officially have such an agreement, but it only ever buys Boeing.”121 Gregory Brenneman, the president of Continental Airlines, held the view that even without the agreements, Continental would continue to buy Boeing aircraft to cut maintenance and training costs. He said the Commission’s demand to scrap the agreements was “a request made out of not understanding the business,” calling the Commission “naïve” and adding that if the agreements were scrapped to ensure EU approval of the merger, “the practical implications would be zero.”122 Even FTC Commissioner Mary L. Azcuenaga, who dissented in the FTC’s decision to allow the merger to proceed, had questioned the relationship between Boeing’s agreements with the airlines and its merger with McDonnell Douglas.123 Lawyers for Boeing would later comment that its concessions were highly unusual in that they appeared to be unrelated to the merger itself, rather “intended solely to provide benefits to Airbus.” Airbus actually played a prominent role in the Commission’s investigation of the merger. Airbus was allowed to participate in hearings, to question witnesses from Boeing, and to review Boeing’s list of concessions before the Commission.124 In the meantime, the war of words between U.S. and EU officials was escalating. A spokesman for Competition Commissioner van Miert, in response to U.S. objections on extraterritoriality, said, “If any deal has an effect on the European marketplace, then the jurisdiction is within our territory. We don’t give a damn about extraterritoriality.” Van Miert also threatened to impose a fine of 10 percent of Boeing’s revenues – $4 billion – if Boeing went ahead with the merger absent EU approval.125 Congressmen from Washington, Boeing’s home state, sent a letter to van Miert arguing that he had opposed the merger from the beginning and that he was acting not on principle, but out of a desire to protect Airbus. Vice President Al Gore stepped in, saying, “We haven’t been bashful about our advocacy of the rights of American businesses overseas. We will be watching [the European Commission’s] deliberations extremely carefully, and we will take whatever action is appropriate to ensure justice and fairness.”126 By July 18, as Boeing continued to cling to its long-term exclusive supply agreements, U.S. officials were mulling means for retaliation against Europe if it blocked the merger. Such retaliation could include limiting flights between the United States and France, where Airbus aircraft are assembled; levying tariffs on imports of Airbus aircraft; and filing a complaint with the World Trade Organization.127 President Bill Clinton commented, “I’m concerned about what appears to be the reasons for the objection to the Boeing-McDonnell Douglas merger by the European Union. We have a system for managing this through the World Trade Organization, and we have some options ourselves when actions are taken by Europe in this regard.”128 The U.S. House of Representatives on July 21 passed, by a vote of 416-2, a resolution denouncing the European Commission’s interference in the merger proceedings, stating the Commission was “apparently determined to disapprove the merger to gain an unfair competitive advantage for Airbus” and that such “unwarranted and unprecedented interference in a United States business transaction … would directly threaten thousands of American aerospace jobs and potentially put many more jobs at risk on both sides of the Atlantic.”129 The resolution signaled that any Commission veto of the merger would be considered the first salvo in a transatlantic trade war.