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NEW FRONTIERS of ANTITRUST DEMAIN LA CONCURRENCE 10Th ANNUAL INTERNATIONAL CONFERENCE of CONCURRENCES REVIEW NEW FRONTIERS OF ANTITRUST DEMAIN LA CONCURRENCE 10th ANNUAL INTERNATIONAL CONFERENCE OF CONCURRENCES REVIEW Ministry for the Economy and Finance, Paris, 14 June 2019 I 8.30 - 19.00 PROGRAM 08.30 14.30 09.00 09.45 16.00 16.30 11.15 11.30 18.00 18.15 13.00 18.30 2 - New frontiers of antitrust - 14 June 2019, Paris CONTENTS Conference Summary 02 Social Events 16 Press Reports 18 Testimonials 28 Attendees 29 FOREWORD he 10th edition of the Concurrences Review conference «New Frontiers of Antitrust» was attended by 300 persons at the Ministry for the T Economy and Finance on 14 June 2019. Attendees came from over 20 countries (Austria, Belgium, Czech Republic, France, Germany, Greece, Hungary, Italy, Luxembourg, Poland, Portugal, Romania, Spain, Switzerland, the Netherlands, Turkey, Ukraine, the United Kingdom, the United States, etc.). The four high-level panels gathered 27 speakers from 8 jurisdictions. The result was a day of intense debate and discussion with enforcers, attorneys, in-house counsels and academics. The conference proceedings reflect the intense debates held during this day and will be released online in Concurrences N°4-2019. We are thankful to the panel sponsors — Analysis Group, Compass Lexecon, CRA, Dechert, Gide Loyrette Nouel, Jones Day, Qualcomm, RBB Economics, White & Case —, the social event sponsors — Cleary Gottlieb, Elig Gürkaynak Attorneys-at-Law, Orrick, Herrington & Sutcliffe — and the media sponsors — MLex, PaRR — who helped make this event such a success from the point of view of both scholarship and networking. We look forward to welcoming you to the 11th New Frontiers of Antitrust conference on Friday 12 June 2020. Meanwhile, we are delighted to share with you some of the key features of the 2019 Conference. Frédéric Jenny Laurence Idot Nicolas Charbit Chairman Professor The Editor OECD Competition Committee University Paris II - Panthéon-Assas Concurrences Review New frontiers of antitrust - 14 June 2019, Paris - 1 CONFERENCE SUMMARY* INTRODUCTORY REMARKS FRÉDÉRIC JENNY hree main periods can be identified with respect to foreign exporters to the country. Issues regarding the lack competition law and policy in the past quarter-century. of a level playing field in global competition also came to the T fore in this increasingly protectionist environment. The trade In the 1990s, competition laws were adopted in liberalization of the 1990s was seen to have promoted many jurisdictions in a context of commercial liberalization. unfair competition among firms facing different regulatory International negotiations were carried out to remove govern- environments in their home countries. Finally, research has mental barriers to transnational trade and investment flows, been carried out on the distributional impact of domestic and concerns were raised over competition issues in global and international competition, an area of research which markets. Also, bilateral and multilateral agreements including had been largely ignored previously. provisions for the protection of competition were signed. We currently face three challenges: a theoretical challenge; At the beginning of the twenty-first century, the globalization a political challenge; and a technological challenge. of markets resulted in economic integration but also legal fragmentation. It raised issues of convergence between legal First, the Chicago School’s approach to competition no regimes and systems as well as issues of cooperation between longer seems relevant to deal with the social and political the authorities acting in different jurisdictions. Convergence considerations that are now in the foreground. Further, a has resulted especially from the increasing use of economics more economic approach to competition law enforcement for the purpose of interpreting and applying competition has resulted in the proliferation of economic models which law. However, convergence has not been fully achieved. claim to justify any possible corporate behavior and do not Differences remain with respect to the scope of competition always usefully inform competition authorities and courts. law (e.g. whether competition law should include state aids, Some feel that competition law enforcement would be better deal with excessive pricing, etc. and whether public interests served by empirical studies rather than by an excessive should be considered in competition assessment). Regarding reliance on theoretical models. cooperation, the authorities increasingly work together on multijurisdictional cases and coordinate their actions with Second, the protection of consumer welfare as the main respect to remedies. objective of competition law and policy has been called into question. It is widely acknowledged, on the one hand, that Since the 2008 financial crisis, doubts and criticism have other interests than those of consumers must be taken into emerged, as the functioning of markets has revealed account in decision-making and, on the other hand, that irrationalities and inefficiencies. The premises underlying consumer welfare may be more complex than consumer competition assessment and related economic theories have surplus. What is perceived as an excessive focus on the price been called into question and two issues came to the fore in dimension of competition law enforcement is being criticized. the aftermath of the financial crisis: is competition sufficient to ensure the optimal functioning of markets?; and does Finally, digitalization requires us to rethink numerous notions competition occasionally result in inefficiencies? Following the used in antitrust analysis (such as the notions of undertaking financial crisis, regulation and competition were regarded as or of relevant market) and to adapt our tools of analysis (for complementary in the financial sector. This led to a change example adapting the tools we use to establish market power). of perspective on regulation. Regulation is not dismissed Other issues relate to how to treat, from the competition anymore, as it had been in the 1990s on the grounds that it angle, the handling of data by digital platforms. impedes efficiency. Rather it is now considered that it can be It is against this background that the panels will focus on the a necessary complement to competition law enforcement in following topical issues: competition law goals and the question a number of areas (for example the digital economy). of whether they should be revised; the role of courts with As a consequence of the financial crisis and subsequent regard to that of competition authorities; restrictive practices decrease in economic growth, governments attempted to or the restriction of free trade to ensure that interests at stake implement policies to revive economic growth and adopted are better balanced and thus advance towards achieving protectionist measures to avoid these policies benefiting mainly equality goals; and issues relating to personal data. * Concurrences has drafted the present synthesis. The views and opinions expressed in this document do not necessarily represent those of the speakers’ institution or clients. 2 - New frontiers of antitrust - 14 June 2019, Paris Frédéric Jenny Chairman, OECD Competition Committee, Paris Professor, Co-Director of the European Center for Law and Economics, ESSEC, Paris President, Concurrences Review International Committee New frontiers of antitrust - 14 June 2019, Paris - 3 PANEL 1 BEYOND ALSTOM-SIEMENS: IS THERE A NEED TO REVISE COMPETITION LAW GOALS? rédéric Jenny: The agitation around whether merger control Jorge Padilla: Evidence shows that many European companies are rules should be changed predates the Alstom/Siemens very competitive in foreign markets and suggests that large size may F decision, although it has taken on a new dimension. Before the not be a necessary condition for competing abroad successfully. Alstom/Siemens decision, Europeans leaders had already expressed The main issue European companies face both domestically and concerns over merger control as it is currently enforced by competition abroad is lack of resources to finance investment, which may not authorities. In Germany, a rewriting of merger control rules has been be a consequence of the companies’ size or barriers to accessing proposed, together with the adoption of additional industrial policy capital markets but rather the lack of “patient capital” in Europe and measures to facilitate the emergence of European champions. the limited size of their home markets due to internal restrictions within This agitation came to a climax with the Alstom/Siemens decision. the European market. Tight competition rules do not place companies In the aftermath, the French and German Ministers—Mr. Le Maire at a disadvantage but create a competitive advantage; companies and Mr. Altmaier—stated that greater consideration of state control forced to act as fierce competitors domestically will develop the and subsidies is necessary to understand how competition works strengths and skills needed to compete in foreign markets. in international markets; that greater emphasis should be placed on Sir Christopher Bellamy QC: There are some political questions potential and future competition at the international level and that a longer time frame should thus be adopted for the purpose of reviewing underlying the Alstom/Siemens decision that one should face transactions; that the European Council should be allowed, for policy up to. With the financial crisis and the dominance of tech giants, reasons, to review and possibly overturn
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