New Transatlantic Trends in Competition Policy: Report

A high-level roundtable organised by Friends of Europe, the Atlantic Council of the United States, Baker & McKenzie, the Computer & Communications Industry Association (CCIA), and the Initiative for a Competitive Online Marketplace (ICOMP) with media partners Europe’s World and MLex Market Intelligence produced this report.

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A roundtable discussion focusing on antitrust policy enforcement in the US and the EU took place in Brussels on 10 June 2010. Competition officials from both sides of the Atlantic, lawyers, politicians and economists, came together to discuss how competition policy has been shaped over the last two decades, and how it is likely to evolve in the aftermath of the economic crisis still affecting global markets. A second round of talks, where participants are expected to elaborate on recommendations for future policy will take place in the autumn in Washington, D.C.  

Two main themes were discussed during the day. The roundtable participants first tackled the issue of convergence between the EU and the US model of competition enforcement, and later discussed regulators’ enforcement priorities for the near future. Interveners were requested to comment on the role of competition policy in a wider political context, however many arguments and observations presented were technical.  

Overall, those intervening agreed that in the last 20 years, the two authorities have become more aware of each other’s work, developed greater trust in one another and now enjoy a tighter relationship. For example, there are numerous occasions when cartel investigations have been coordinated and carried out simultaneously in both jurisdictions, with officials sharing information and resources to see law-offenders punished more effectively.  

However, questions remain as to whether full convergence is possible, or even desirable, given that substantial differences in the authorities’ outlook of the economy and business world are still identifiable. Furthermore, structural differences in the way the authorities operate (while one is administrative, the other is adversarial) persist. As noted during the sessions, while some of the barriers previously setting the EU and the US apart (for example, the fact that economic analysis had no place in the EU) have meanwhile dissipated, new obstacles have emerged.  

Some discussants expressed doubt that full harmonisation of rules, priorities and practices would be beneficial in the long-term. Unlike financial regulation, which as the economic meltdown has proven, requires a coordinated approach, the reality of competition policy is still partly about regulating several distinct markets. In short, some believe that convergence is only desirable up to a certain point. Indeed, markets are increasingly global, yet for many products, tailored interventions may better serve consumers’ interests.  

Furthermore, it was noted that interested parties (competition authorities, politicians, legal practitioners and businesses) do not all view convergence in the same light, with some supporting the idea and others condemning it.  

In general, participants acknowledged the importance of the EU and the US influencing a new generation of countries, including China and India, to create competition regimes.  

As for future enforcement priorities, fostering innovation and taming new markets (such as the online world) top the agenda of most authorities. It emerged from the debate that regulators should dedicate more resources to understanding how these new business models function, in order to tailor enforcement adequately.  

Co-moderator Giles Merritt, Secretary General of Friends of Europe, closed the day’s debate hoping participants would delve deeper into some of the issues discussed on this occasion, during the next roundtable. In particular, he called on discussants to think about how competition policy may intervene in shaping the world economy’s new dynamic, and whether a joint G20 agenda could be put together.  

SESSION I – Defining the global dimensions of EU and US competition policies 

During the first session of the day, discussants observed how competition policy in the United States and Europe has evolved over the last two decades, with the intention of highlighting areas where enforcement has either converged or in contrast shifted apart over time.  

In this context, Co-moderator Robert McLeod, Editor in Chief and Founder of MLex Market Intelligence, attempted to frame the debate by asking attendants to reflect on what convergence means, more specifically, what type of convergence enforcement agencies, politicians or legal practitioners are aiming to achieve.  

Three overarching themes emerged during the morning session, which were later in the day revisited by some of the guest speakers: the path to convergence between EU and US antitrust policy, is convergence possible or desirable, and competition policy convergence worldwide. 

J. Thomas Rosch, Commissioner of the US Federal Trade Commission (FTC), opened the panel with a historical take on the evolutionary trends of competition policy. Acknowledging that his opinion on the matter had become more nuanced in the last few years, he noted that many of the barriers he had previously identified as obstacles to convergence were now “dissipating” or at least “contracting”.  

For J. Thomas Rosch, traditionally there were six barriers to harmonisation. The fact that the systems diverged in architecture (administrative in the EU versus adversarial in the US), that the approach towards dominant firms was more restrictive in Europe, that case law applying rules had taken different routes (on issues such as resale price maintenance), that European countries resorted to nationalising and subsidizing certain firms to boost employment, that the US promoted a clear Chicago School economics model towards price theory whereas the EU was more hospitable to post-Chicago thinking[1], and lastly that European Commission decisions may be appealed by third interested parties, made convergence unlikely. 

Instead, he argued different obstacles have in the meantime emerged, which may potentially lead to a split in “substantive and procedural antitrust law enforcement” in the two jurisdictions.  

In essence, J. Thomas Rosch believed that fragmentation both at EU and US level may compromise harmonisation further down the line. Some of the newly identified barriers could be attributed to the emergence of separate antitrust rules and law enforcement priorities in member states across Europe as well as the US’s increasing reliance on private enforcement (such as treble damages actions) across 50 states. Furthermore, Commissioner Rosch noted that in contrast to the EU, which rests largely on a unitary supervisory system (the European courts in Luxembourg have full jurisdiction over the European Commission’s decision, and may, if requested, orient national courts on how to interpret the law), the US still counts 13 federal appellate courts and 50 state supreme courts multiplying the interpretations given to US statutes. For these reasons, future convergence remains uncertain.  

Alberto Heimler,Chairman of the Working Party on Competition and Regulation in the Competition Committee of the Organisation for Economic Co-operation and Development (OECD), agreed that philosophically, the US and the EU were no longer two worlds apart. In particular, he attributed the closing of the gap to Europe’s move to increase the role of economic analysis in its competition decisions. Economic analysis was introduced over the course of the last 20 years through the adoption of a series of regulations by the European Commission, including the merger regulation in the late 1980s, the communication on the ‘relevant market’ of the late 1990s, and the vertical restraints block exemption regulation in 1999.  

Nonetheless, “important differences remain” said Alberto Heimler, namely with regard to the treatment of firms’ unilateral conduct. For instance, in the EU, once a firm is dominant on the market it operates, the standard used for proving the existence of an abuse is the potential exclusion of an equally efficient competitor. In principle the standard is the same in the US. However, he argued, US courts have insistently required that competitors actually leave the market, a much too rigorous standard. More specifically Alberto Heimler recalled that case-law on ‘obligation to deal’[2] by dominant firms was less ideological in Europe, an approach that he suggested the US should also adopt. He noted that the Supreme Court in the Trinko case was wrongly interpreted to imply that an “antitrust duty to deal can no longer be found” in the US.  

According to Antoine Winckler, Partner at Cleary Gottlieb Steen & Hamilton LLP, there has not been convergence in the “system of procedural rules of competition policy”. 

“I think the European system is still wedded to an inquisitorial approach, where enforcement is run from A to Z by the regulator, whereas the US system is adversarial. Antitrust enforcement in the US is led by the courts”, he said.  

Some observers believe change towards a more adversarial type of system is necessary, because the European Commission no longer plays the role of a market educator, as it did when the rules were first put into place. Moreover, with the increasing level of antitrust fines, lawyers and observers note that courts must play a more active role, scrutinising decisions more closely, in order to avoid a loss in legitimacy. 

Discussants then steered the debate towards the political realm, with Sophie in ‘t Veld MEP, European Parliament Vice Chairwoman of the Committee on Civil Liberties, Justice and Home Affairs and Rapporteur on Competition Policy, warning that “there is growing reluctance against market forces and free trade in general” in Europe. More worryingly, she floated, the economic crisis witnessed has taken a toll on citizen’s confidence in the European Commission’s intervention.  

For the MEP, legitimacy could be regained by extending the debate on the economy (including competition matters) to the wider public, consequently turning it into a “more democratic process”.  

However, Alexis Walckiers, Chief Economist of the Belgian Competition Authority, brought the discussion back to the technical, legal realm, by disagreeing with a comment made on the need to create a common action in competition enforcement in the wake of the economic crisis. Unlike financial regulation, where a unified approach is necessary to prevent another meltdown, Alexis Walckiers argued convergence in competition is “desirable, but only up to a certain point”.  

While for companies wishing to acquire another, a coherent approach by EU and US authorities is extremely important, in cases where unilateral conduct is under scrutiny (for example, when companies bundle up two different products together) common action may be counterproductive. In essence, different market structures may call for tailored antitrust decisions because the effects replicated on the real markets are not always the same.  

Nicholas Forwood, Judge at the General Court in Luxembourg, highlighted some fundamental principles, which justify differences in EU and US courts’ interpretation of competition law, including the fact that 90 percent of enforcement in the US is conducted through private civil actions. In Europe, enforcement is still the task of EU or national regulators, and therefore its “focus is entirely different”, he explained.  

At any rate, for the judge, competing opinions and approaches to competition enforcement and the interpretation of the law is a positive omen: “I have an admission to make. I mistrust consensus. In particular, consensus that is not regularly challenged. I’m very happy when I see a situation in which there are competing approaches”, he posited.  

Achieving full convergence may also prove an arduous task because not all interested parties (lawyers, businesses, governments) are on the same page. As Thomas McCoy, Executive Vice President of Legal, Corporate and Public Affairs of AMD,pointed out,while businesses would appreciate the legal certainty arising from convergence, politicians still hang on dearly to power and therefore view the merging of systems less benevolently.  

Co-moderator Giles Merritt called on participants to refocus the debate and comment on the implications of the “global dimensions of the US and Europe’s competition policies”, specifically where it influences the systems in other countries such as China or India.  

Robin Noble, Managing Consultant for Oxera, welcomed the idea of most countries developing competition policies regardless of “the form they take”, as a result of the EU and the US exerting soft power over other nations.  

He then emphasised that one of the major differences between the EU and all other jurisdictions rested on the fact that within its borders companies had witnessed the “slow death of industrial policy”, exemplified by a heavy hand towards member states granting financial support to national companies. In this respect, Noble noted that divergence was perhaps “no bad thing”. 

Picking up on Robin Noble’s comments, Jay Modrall, Partner at Cleary Gottlieb Steen & Hamilton LLP, noted that the EU’s administrative system had inspired the Chinese model of competition enforcement, but reminded discussants of the pitfalls of such a system, which would benefit from more “transparency” as well as from more adversarial “checks and balances”.  

Sean Heather, Executive Director of Global Regulatory Cooperation at the US Chamber of Commerce, later expressed concern over the “harm”[3] certain governments could inflict on global competition by fostering practices such as price fixing. He acknowledged that the EU was “a lot more capable” of influencing countries such as China to play by the international rules when it concerned state aid.  

J. Thomas Rosch revisited the issue, acknowledging that the US “should play a greater role in the state aid area”. He also concurred with other observers on the EU’s dominating influence on the global competition scene. For him, “the most important reason why Asian countries are opting for the EU system instead of the US system is that they like the EU’s administrative system more than the adversarial system” which is commonly associated with higher costs and burdens.  

The second session of the day was inaugurated by a speech by European Commission Vice President and EU Commissioner for Competition Joaquín Almunia, honing in on his enforcement priorities for the coming years. These will focus chiefly on guiding the EU safely out of the economic crisis by avoiding distortions to competition in the internal market, as well as preparing the Union for the future, with active policy to boost innovation and clamp down on abusive practices restricting it.  

Subsequently, speakers touched upon the issue of innovation, mostly in relation to new economies, such as the Internet. It emerged that more understanding is needed of new business models which have come to revolutionise the way competition works on more traditional markets. One of the examples explored concerned online and offline advertisement. In this context, regulators were called on to modulate their regulatory practices and reflect about how enforcement may have an impact on these newly developed markets.  

One of the main objectives set by Commissioner Joaquín Almunia for his term in office consists of creating tools to encourage innovation in Europe, which in this respect lags behind the US. Some of the legislative measures pending in the pipeline include a revision of guidelines on state aid and antitrust rules. For instance, a public consultation on a draft proposal to change rules governing horizontal cooperation between rival companies (in research and development and in standard settings) was recently launched. The aim of the piece of legislation is to “clarify our present framework”, and “allow competition policy to look forward on the basis of innovation and not only on prices and output”, Joaquín Almunia remarked. 

The EU’s competition services are particularly concerned about clarifying rules on standard setting in the Information, Communications and Technology (ICT) field. The European Commission has over the years gained some experience of the sector by pursuing antitrust investigations targeting companies[4] suspected of ambushing patents and harming end consumers.  

Revisiting one of the topics of the morning, Joaquín Almunia emphasised the “deeply rooted cooperation” Europe has developed with the US, including its ties with the FTC and the antitrust division of the Department of Justice. These ties have, according to him, led to more effective interventions and minimised incoherent responses to the market, for example in mergers between companies with a global outreach. Commissioner Almunia explained that a recent merger between Oracle and Sun had led to some divergences because the timing of the notifications differed, and therefore created some difficulties for the authorities. Conversely, he highlighted that the Microsoft, Yahoo deal was an example of good cooperation.

Furthermore, Joaquin Almunia noted that there is a case to be optimistic regarding convergence in areas where most commentators observe discrepancies in practices, most strikingly in the treatment of unilateral conduct by dominant firms. He illustrated his point with the Intel decision of last year, which “suggested [the EU and the US] are not that far apart in thinking”.  

The Commissioner also touched on the topic of ‘due process’. In this context, he acknowledged that companies’ right to a fair antitrust procedure was a top priority for his term in office.[5] Although he is willing to improve the system by taking ideas on board, the Commissioner noted a complete overhaul of the EU’s administrative system – relying on the EU courts to control decisions issued by the Commission – is not necessary and is not to be expected. “Not only are our decisions extremely reasoned and subject to the courts’ judicial control, the process fully involves the companies.” 

“Every time there is a new comment, a new idea, a suggestion on how to improve practices or our regulation, I will take this on board. But the merits of our system as such should not be put into question. We will not follow those who ask us for radical changes in this field”, he added.  

Towards the end of his address, the EU Competition Commissioner noted that he will be examining with his colleagues Viviane Reding and Johna Dalli how to introduce a coherent framework for collective redress that avoids economic incentives to abusive litigation and that a public consultation on this would be organised in the autumn. Before taking any action, there should be an agreement on common principles that can be applied in various areas, beyond competition, such as the protection of consumers against faulty products. “I’m confident a solution can be found to avoid abuses to excessive litigation, while at the same time giving access to justice for those harmed by antitrust infringements”, he said.  

National competition authorities have also placed the protection of innovation high on their agendas. According to Matthew Bennett, Director of Economics at the Office of Fair Trading (OFT) in the UK, the regulator will not shy away from intervening in high innovation markets if competition law is breached. However, intervention in these types of markets should be to secure long term consumer welfare gains through the protection of the innovation process rather than short term gains to consumers.  

During his introductory remarks, Matthew Bennett also mentioned that the OFT will remain devoted to bridging competition and consumer policy enforcement as a means of achieving better functioning markets. “The OFT firmly believes there needs to be both policies to make markets work well.” In the event they are not “joined up”, authorities may end up with a “consumer intervention which takes a narrow vision of the market”, or “have a competition policy which is blind to certain consumers”. 

Edward Black, President and CEO of the Computer & Communications Industry Association (CCIA), warned that regulators on both sides of the Atlantic have to work closely to understand the new realities and adapt their policies to the dynamic world of high-tech businesses.He also stressed the need for regulators to be highly cognisant of the role of disruptive competition in cutting-edge industries. 

He acknowledged that intervention had benefited many companies in Silicon Valley in the early days, but that while intervention to stop abuse remains essential,there is now a danger of regulators getting into a “highly regulatory overseeing mode”. This outlook may be particularly damaging for small companies that cannot handle the burdens of regulatory intervention. Rather, competition authorities should focus intervention on issues which truly demand attention, such as practices associated with the abuse of intellectual property rights, he argued. According to Edward Black, antitrust advocacy and enforcement is becoming extremely complex and multifaceted and can encompass public relations, political lobbying, as well as legal manoeuvring. He added that regulators must work to separate true industry-wide competition concerns from complaints that are more parochial in nature.  

In this context, Edward Black suggested that a balanced interaction between IP protection and competition policy ought to be achieved in order to mitigate some of the negative effects created by a company obtaining exclusive rights. If IP regimes are too expansive and imprecise they tend to harm competition and innovation rather than promote them. 

During the open question session, Robin Noble asked representatives of the authorities present at the event to give their views on how and where ‘behavioural economics’ will have an impact.  

In response, Salvatore Rebecchini, Commissioner of the Italian Competition Authority, mentioned that such a tool is “more useful in the consumer protection domain”, as opposed to the application of competition law. Matthew Bennett, who had introduced the topic earlier, agreed, explaining that behavioural economics is most “widely used in consumer policy”. However, there are examples of competition investigations – such as the European Commission’s investigation into Microsoft’s Internet Explorer[6] – where this type of analysis has served a purpose. Whether this type of analysis will take centre-stage in the near future remains to be seen, according to Matthew Bennett. 

Salvatore Rebecchinireminded participants of the role national authorities have played in keeping governments in check, especially in the aftermath of the global economic crisis. More than ever before, it is important for regulators to promote competition policy and be “vigilant” of the “pressures to backtrack” on improving the standards of enforcement of EU competition law, he argued.  

Speaking of his own country, where the government has made positive steps to liberalise previously state regulated sectors, Salvatore Rebecchini said: “We need to enforce our competition policy in promoting consumer welfare. This means that we have to promote an effects based approach, be attentive to incumbents in liberalised sectors and policies they may put in place.” 

David Wood, Legal Counsel for the Initiative for a Competitive Online Marketplace (ICOMP), brought the issue of new markets, such as the Internet and data-based services such as search, into the debate. Such borderless markets call for yet more coordination between regulators, he said, since practices in “one part of the world may have a knock-on effect in another part” or may be implemented elsewhere later. 

The counsel for ICOMP also alerted participants to the fact that there is to date very little analysis available dealing with the effects of privacy and piracy on competition and innovation. In short, David Wood believes regulators, practitioners and observers should invest more time in deciphering the ins and outs of the new economy, making it a policy priority. “New economy issues need to be a priority”, he concluded.  

Picking up on the last subject, Stephanie Joyce, Partner at Arent Fox LLP, welcomed the European Commission’s resoluteness to regulate Internet players, in particular by conducting “ex-ante checks on powerful broadband players”, unlike the US, which “has abandoned applying unbundling rules”. For her, this constitutes a divergence between both systems.  

The definition of online and offline advertisement raised some discussion, with panellists taking different views on whether they should be classified and understood in the same way. According to Andreas Bardong, Head of German and European Merger Control Policy at the German Competition Authority (Bundeskartellamt), “most authorities involved [in cases where this definition is analysed] come to the conclusion that traditional types of advertisement in newspapers is still a separate market”. 

Irwin M. Stelzer, Senior Fellow and Director of the Economic Policy Studies Group at the Hudson Institute, argued he was inclined to say that in the future there will be “high interchangeability” of demand between both types of advertisement.  

Nick Woodrow, Head of Competition Law at Vodafone Group, took the opportunity to widen the debate and call on regulators to deepen their understanding of the “interaction between the Internet and the offline world”, as well as how the Internet’s value chain works. “There is not enough understanding of how the chain works and where the bottlenecks are. We have been trying to do it to understand our role in the value chain.”