Chillin'Competition

Once again, the CRA conference proved to be the second 😉 most successful competition conference in town (congrats again to Cristina Caffarra and her team). Director General Laitenberger delivered an important speech that struck some chords with us and that, as explained below, relates to much of what has been discussed on this blog. The speech is now online.

As you will see below, we very much agree with many of the big picture messages, but have some doubts or nuances regarding the important small print, particularly on the implementation of the Intel Judgment going forward.

Part I of this post will be devoted to the big picture. Part II discusses the fine print.

The Political Background

DG Laitenberger gets the big picture and the technical competition law stuff, and the speech was a very good reflection of that. The speech run an introductory thread through a number of societal issues, including growing inequality, citizens’ doubts as to the functioning of markets, the reassessment of beliefs and certainties in the wake of the economic crisis or the role of technology. On this latter point he referred to fake news, clickbait, to “echo chambers” and increased polarization. That is the current background leading to the question, “where does this leave competition law”?

In my introductory speech at the past Chillin’Competition conference I actually referred to most of those issues, to make the point that while (really) important things happen, we competition lawyers live in our bubble and within our very own echo chamber. My point was not to connect competition law to those challenges, but rather the contrary, a bit to appease my conscience for devoting so much time to competition law when there’s so much else to be done. The DG’s diagnosis of the current background was brief, but right, and, to me, uncontroversial. The link to competition law was perhaps less evident, but still.

The Wider Competition-Related Messages

1) DG Laitenberger said that “while the economy and the society change so much, the ground rules of EU competition law remain so stable. They were designed to apply to a wide range of scenarios. They have proven capable of navigating the last 60 years. I should think that they will be able to navigate the next 60 years. This is so because the nautical charts- the fine print- which underpin the direction are continuously refined and adjusted”.

I wholeheartedly agree, with only one nuance. The refinement and adjustment cannot be radical or motivated by considerations alien to the law and that change the discipline’s direction. As we have always repeated, the stability of the law has to do with its relative isolation from small politics and by the slow judge-made distillation of common sense infused with mainstream economics in the light of experience across all countries, sectors and products.

2) The DG went on to say that “I see some polarisation in the competition community as well. My thesis today is that we can work to move away from the more extreme interpretations of the charts. We can-and should- focus on building a more common understanding”.

Again, entirely agree. We have always favored a radically centrist view of competition law, with regard to many specific issues, even connecting it to the political center in the big picture.

In that regard, I also welcomed a reference in the speech to something that is not often said and that I believe is important and true, that “ultimately, with all its refinements and adjustments, the interpretation of the antitrust remit has been more stable on this side of the Atlantic than in the U.S.”

3) The end of the speech touched on “the role of competition law vis-à-vis other societal concerns”. Echoing Commissioner Vestager’s speech at our last conference, DG Laitenberger acknowledged that competition law can’t fix it all. He nonetheless explained also that “it is possible to have big-picture concerns- about fairness, or inequality of innovation. While applying rigorous enforcement at the same time. And it is possible that rigorous competition enforcement has beneficial effects on these big picture concerns- sometimes inevitably so (…) There is no reason to be shy about the overall impact of competition law (…)”.

Once again, agreed; in fact this is the very same point I made on this editorial piece for JECLAP about fairness. As developed therein, references to the “big picture” cannot expand the reach of the competition rules, but I also believe that a more fair society is a consequence of the right (“rigorous” in the words of the DG, a very important nuance) application of the competition rules.