Judicial Interference: Redefining the Role of the Judiciary within the Context of U.S. and E.U. Merger Clearance Coordination
In December 2003, Sony and Bertelsmann AG (BMG) sought approval from the Federal Trade Commission and European Commission to effectuate a joint venture between the two companies. Remarkably, almost two years after both antitrust authorities had cleared the Sony-BMG joint venture, the Court of First Instance annulled the European Commission’s decision to approve the transaction. This groundbreaking decision by the Court of First Instance has the potential to undermine coordination efforts between antitrust authorities in the United States and the European Union, as well as to frustrate the predictability and efficiency that businesses need in merger regulation. Using the regulatory review of the Sony-BMG transaction as a starting point, this Note examines judicial review of merger clearance decisions in the United States and the European Union. The Note then suggests that judicial standards of review should recognize successful multinational coordination as a reason to defer to antitrust authority decisions and require increased transparency to facilitate such review.