New Frontiers of Antitrust2014
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New frontiers of antitrust 2014 > Demain la concurrence 2014 Concurrences Journal 5th International Conference Ministry of Economics and Finance, Paris Panel Sponsors PANEL 1 PANEL 2 PANEL 3 PANEL 4 Social Event Sponsors EVE’S SPEAKER DINNER SPEAKER LUNCH SPEAKER DINNER Contents Foreword 01 Conference Summary 02 Social Events 16 Press Review 22 Testimonials 30 Appendix 32 Foreword he fifth edition of the Concurrences Journal T conference "New Frontiers of Antitrust" was attended by 275 persons at the Ministry of Economics and Finance on 21 Feb. 2014. Attendees came from Belgium, France, Germany, Italy, Luxembourg, Netherlands, Switzerland, the UK and the US. This year, we welcomed two keynote speakers: EU Commissioner Joaquín Almunia and Minister Nicolas Charbit Benoît Hamon. The four high level panels gathered The Editor 20 speakers from 7 jurisdictions. The result was a Concurrences Journal 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. The proceedings have been released on line in Concurrences N° 2-2014. The print version will be released as a book in September 2014. We are most thankful to the conference Steering Committee headed by Frederic Jenny and Laurence Idot. Their choice for the four panels was carefully thought out to achieve just the right mix of topical subjects, political issues and scholarship. We are also thankful to the panel sponsors – Cleary Gottlieb, CRA, E.CA, Gibson Dunn, MAPP, Norton Rose, and, Shearman & Sterling - and the social event sponsors – Clifford Chance, Compass, Jones Day, Mayer Brown, Microeconomix, and, White & Case - 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 6th New Frontiers of Antitrust conference in February 2015 in Paris. Meanwhile, we are delighted to share with you some of the key features of the 2014 conference. New frontiers of antitrust 2014 Concurrences Special Issue - 1 CONFERENCE SUMMARY* KEYNOTE SPEECH JOAQUÍN ALMUNIA Nathalie Homobono (General Director of Direction Générale de la Concurrence, Consommation et Répression des Fraudes) and Frédéric Jenny (Chairman of the OECD Competition Committee, Professor of Economics at ESSEC and President of the Concurrences International Committee) introduced the four topical issues to be dealt with by the different panels. They noted the indefectible presence of Commissioner Almunia at the conference, which he has helped to make an unmissable event in the antitrust community. oaquín Almunia focused on the interplay between nature of prohibition decisions in the context of the competition and growth in the European Union. merger review process. J Underlining the role of competition law as a means Turning to antitrust, the Commissioner pointed out the to foster production and innovation, the Commissioner damage to the common market caused by absolute reminded the audience about the determination of territorial protection, a reason for the Commission to competition policy to correct market distorsions. The investigate the licenses between American majors and Commissioner stated that the economic difficulties the EU European pay-TV providers. Mr Almunia also explained is facing will not be cured by obsolete means such as that the financial sector remains an area of concern for protectionism and leniency with regard to competition antitrust, as illustrated by the LIBOR scandal. He argued enforcement, but rather by developing an offensive and for a more secure and transparent financial sector focusing dynamic approach based on the internal market promoted on real business. by competition policy. Advocating a stronger and more competitive Europe, the Commissioner called for a more Finally, as regards abuses of dominant position, the effective and integrated internal market, urging for Commissioner focused on the on-going Google case. He noted that after complex discussions, the Commission measures to remove remaining national barriers in high may ultimately adopt an article 9 decision in the coming potential markets such as electronic communication, months but that the procedure is not over yet. He insisted online business and energy. Stating that a common market that no new market test would occur, but that preliminary without barriers and with effective competition among letters would be sent to the formal plaintiffs to explain why firms that leads to improved performance is the winning the proposals seem capable of addressing the competition formula, Joaquín Almunia added that although economic concerns identified. For Mr Almunia, the solution reached recovery needs other strong policies, in terms of job so far would, if implemented, be similar to a specific creation and financial system enhancement in particular, regulation burden imposed on Google. competition policy is key. The Commissioner answered questions from the On the subject of State aid, the Commissioner emphasised attendees. He addressed the issue of extending the scope the fact that the European Commission encourages public of the European merger control regime to non-controlling aid that is properly designed and targeted. Specifying that minority shareholding, saying that an analysis will be about 95% of notified measures are authorised in practice, prepared for the next Commission. Answering a question he mentioned recent guidelines and projects to be adopted on national sovereignty in sectors such as energy and in the next few months (in the energy and environmental electronic communications to increase market efficiency, field in particular) to emphasise that the fact that focusing Mr Almunia pointed out that States are no longer sovereign on State aids that strongly impact the internal market will in these sectors led by powerful operators and called for make about 90% of aids escape the control process. the creation of a strong common market in these sectors. He finally reacted to comments on the LIBOR case, stating As far as merger control is concerned, Joaquín Almunia that more regulation and investment from sector-specific recalled that competition law does not hinder the creation regulators were needed to restore confidence in financial of European champions, specifying the exceptional benchmarks. 2 - New frontiers of antitrust 2014 Concurrences Special Issue 1 1 Frédéric Jenny 2 Nathalie Homobono Nathalie HOMOBONO 3 Joaquin Almunia General Director of Direction Générale 4 Audience de la Concurrence, de la Consommation et de la Répression des Fraudes Joaquín ALMUNIA * This summary has been prepared by a team of PhD Vice-President of the European students: Baptiste Allard (Paris V), Élise Provost (ULG) Commission - Commissioner and Déborah Thebault (Paris V). The views expressed cannot be deemed to reflect the position of the responsible for Competition Policy speakers’ institutions. 3 2 4 New frontiers of antitrust 2014 Concurrences Special Issue - 3 PANEL 1 DETECTION OF ANTICOMPETITIVE PRACTICES: SHOULD EXISTING TOOLS BE REVISED OR NEW TOOLS INTRODUCED? LENIENCY, MARKET SURVEYS, FINANCIAL REWARDS ETC. hairing this first round table session, Laurence Idot information inside the authority; and improving the exchange (Professor, Université Paris II Panthéon-Assas, of information among authorities. He noted that the OFT had C Member of the French Competition Authority, adopted a number of approaches that are used by traditional President of Concurrences Scientific Committee) first laid out law enforcement bodies such as the police. These include the basis for the panel’s discussion. She mentioned that financial rewards for information; a dedicated informant although no new detection tool has ben added to the toolbox telephone line where information can be provided anonymously; of the majority of competition authorities over the last fifteen analysis of communication data to track contacts between years, the debate having focused on reinforcing the existing competitors, and greater sharing of information with traditional tools, reforming the toolbox has now become an important crime enforcement bodies like the police and anti-fraud issue. The reason is twofold: leniency programs have shown agencies, etc. Although these new tools are in their infancy, their limits – their specific scope, the risk of strategic use by early results seem to show that the OFT is uncovering cartels firms, relative lack of use in some Member States) – and the that it might otherwise not have done had it relied exclusively need for a global and proactive approach to markets has on leniency. He noted that the increase in the likelihood of clearly emerged in the last few years. Mme Idot pointed out detection, which this implies, also benefits the leniency policy two possible ways for reforming the detection toolbox: first, by increasing the incentive for cartelists to self-report. He improving current means; second, adopting new tools, in concluded, however, by noting that the use of these new particular to increase information on markets and behaviour, methods is not risk free since they are capable of infringing that is to say diversifying sources of information, methods of human rights laws. To address this issue the UK had adopted collecting data and information scanning. She also pointed out important safeguards including annual reviews of its activities the limitations of certain methods such as the use of « policing » in this area by an independent inspectorate. in an administrative system,