Relaxing whilst doing Competition Law is not an Oxymoron

Archive for June 15th, 2011

Fordham Brainstorming Room (I)

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As we announced last Friday, and thanks to Barry Hawk and Luis Ortiz Blanco, in the upcoming weeks we will be using this blog as a “brainstorming room” to come up with issues related to “European Competition Enforcement” that could be worth discussing at the 2011 edition of Fordham´s 38th Annual Conference on International Antitrust Law and Policy.

In addition to having your suggestions appear on the blog, once in a while we will devote a post to setting out our own ideas on possible topics.

Here go a handful of them. We look forward to hearing your views!

1. Positive v. Negative Enforcement of Competition Law

a. “Negative” decisions (decisions concluding to the absence of infringement). If we follow Tele2 Polska, NCAs cannot adopt such decisions under Regulation 1/2003. Importantly, this ruling may have an impact on how a number of NCAs run their decisional business, and in particular the French CA which occasionally adopted negative decisions.

b. Inapplicability decisions and guidance letters. Under Regulation 1/2003, the Commission can adopt several types of negative decision. To date, the Commission has never used such powers. In light of (a) stakeholders face now a competition enforcement system that looks very prohibitive. Query: could this lead to over-fixing/type I errors (with firms being excessively risk averse)?

c. Guidance on firm behavior through non-decisional instruments. As we reported on a previous post, the French CA adopted earlier this year a report (avis) on Google and more generally on search advertising. The French CA has an important track record in relation to such reports. Those documents are somehow akin to positive decisions in the making: they contain only provisional findings and do not prescribe remedies. Yet, they are a considerable source of concern for the companies targeted in such reports. They make individualized statements on market definition, dominance, abuse and so on. In practice, they may trigger follow-on complaints from third parties, litigation, etc.  By contrast to positive decisions adopted as a result of formal proceedings, the companies targeted by such reports have little procedural rights.

2. Priority setting, “opportunité des poursuites”. On which sectors/practices should Commission/NCAs focus, both in abstract terms (e.g. sectors where consumer welfare improvements can be large?) and concrete ones (e.g. financial services?) ? Should there be coordination EU/NCAs and NCAs/NCAs in relation to the definition of enforcement priorities?

3. Impact assessment. How to quantify the contribution of competition policy to economic growth and other macro-economic indicators (investment, productivity, employment, etc.)?

4. Alrosa-like case law. A question on the state of play at the national level (Can commitments go further than conventional remedies? Can they escape a strict proportionality assessment?)

5. Appeals. NCAs ability/duty to stand in review courts to defend their decisions (see the VEBIC ruling, also commented on previous posts).

6. Integrated v. bifurcated agency model. Think of the ongoing discussions over the merger of the OFT and the CC in the UK.

7. Competition within agencies. It is somehow of a “secret de polichinelle” that there are diverging views on the effects-based approach between the Legal Service and DG COMP. Are such situations beneficial or counterproductive? In the latter case, could they be avoided?

8. Private enforcement. The elephant in the room?  What are NCAs doing and what can they do to foster private interaction? How do they feel about the Judgment issued yesterday by the ECJ which states that it is a matter for national courts to discern whether access to leniency documents can be granted to parties seeking evidence to substantiate claims for damages?

Written by Alfonso Lamadrid

15 June 2011 at 9:18 pm