38th Annual Conference on International Antitrust Law and Policy- A virtual seat for Chillin’Competition readers
The 38th edition of the Annual Conference on International Antitrust Law and Policy directed by Barry Hawk at Fordham Competition Law Institute will take place in New York on Wednesday, September 7 and Thursday, September 8, 2011. As usual, the conference will feature la crème de la crème in international antitrust (see here for this edition´s truly impressive programme).
As long-time admirers of this conference and avid readers of its published annual proceedings, Nicolas and I are very glad to offer our readers what we see as a unique chance to contribute to the discussions that will take place there this year. Here’s how:
Amonsgt other most interesting panels, on this upcoming edition there will be a roundtable on “European Competition Enforcement”. The line-up of panelists for the roundtable on this topic is certainly unmatchable: Alexander Italianer (Director General, European Commission); Bruno Laserre (President of the French Conseil de la Concurrence); John Fingleton ( Chief Executive at the UK´s Office of Fair Trading), Andreas Mundt (President of the Bundeskartellamt) and Manuel Sebastiao (President of the Portuguese Autoridade da Concorrencia). The task of chairing a bunch of chairmans will fall upon the shoulders of the competition lawyer I´ve always looked up to Luis Ortiz Blanco.
I will be assisting Luis in the drafting of his written contribution, and while dicussing about it an idea sprang to mind. Given the surprising and rising number of competition law experts from all over the world who read this blog, we thought it could be very interesting to ask you to share your ideas on issues related to European Competiton Enforcement that you think should be dealt with by the speakers taking part in this roundtable. We proposed it to Barry Hawk and he also thought it could be interesting, so that’s what we’re doing now.
If you wish to directly contribute to this top-level discussion with your thoughts or experiences on issues related to European competition enforcement, please send them to us preferably as comments to this post. Please note that all of your suggestions will be seriously considered as potential issues to be thrown to the panel, but also that we cannot guarantee that all of them will make it there.
Thanks go to Barry Hawk and Luis Ortiz Blanco for this opportunity. We look forward to hearing about your ideas!
Chillin'Competition 
Dear Alfonso: thank you for the opportunity. I suppose that this conference is not a forum to discuss specific cases, but there is one that instantly comes to mind when thinking about “european competition enforcement” and you and Luis Ortiz Blanco know about it as well as I do. I understand you do not wish to speak publicly about ongoing cases and that that is why you preferred not to reply to a previous question posed by another reader on the case I have in mind, but please allow me to express my personal views on it. Of course I´m referring to the investigation concerning spare parts of luxury watches. What is happening with this case is by all means astonishing and an example of many of the things that are wrong in european competition enforcement. Let me explain myself:
First the Commission rejects a complaint on the grounds that national authorities were better placed to deal with the complaint it had received when the matter clearly merited a EU wide solution. This illustrates how the Commission does not accept or reject cases by reference to the need for a centralized solution. It seems that there are other criteria governing the Commission´s decision to initiate of reject a case. What are they?
Secondly the General Court intervenes (years later) and makes it clear in the Richemont Judgement that the Commission should not have dismissed the complaint given that it was obviously the best placed authority. In the meanwhile, various national authorities (mainly the Spanish CNC) were investigating the same facts. In practice, this meant that companies have been left for years (and still are) wondering if their conduct was or not legal On the one hand, the Commission had issued a decision stating that it saw no competitive problems originating from their policies on distribution of spare parts. On the other hand, national authorities were questioning the Commission´s conclusions and accusing luxury brands of having engaged in abusive conduct. This doesn´t speak very much in favor of the current system, does it? Perhaps you could discuss how similar scenarios might be avoided in the future?
Thirdly, even after the General Courts Judgement (which contained a clear mandate for the Commission to investigate the complaint on the merits anew) the Commission appears to refuse to take action. I frankly cannot understand what the Commission is thinking. As you know, the Commission´s shocking passivity has enabled the Spanish authority to continue investigating the case and to be about to conclude it. In other words, the Commission is (i) tolerating that undertakings may be subject to a sanction for having engaged in conduct which had been previously “blessed” by itself in quite an unequivocal manner; and (ii) enabling a national competition authority to adopt a decision (any Spanish lawyer knows how “well-founded” it will be and we all know in what sense the CNC will decide…)which will have spill-over effects all over Europe.
Does this indicate that the system functions adequately as authorities always say?
Moreover, attention has to be paid to a dangerous precedent: both the Commission and national authoritiues are completely ignoring a Judgement of the Court, which is the only institution that has attempted to do something reasonable in this case. How can this all work properly if all players ignore the referee?
Please excuse the lenght of this comment, but this whole thing is nuts; the very least we can do is to learn from it. That´s why I think that you should include this in the discussion. But of couse this is only my humble suggestion.
Warmest regards
EGD
15 June 2011 at 4:22 pm
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Fordham Brainstorming Room (I) « Chillin'Competition
15 June 2011 at 9:18 pm