PANEL 1 : IP PROTECTION AND ENFORCEMENT: US - EU AGENCIES’ VIEWS DIVERGE?
The first panel compared the major trends in antitrust policies on both sides of the Atlantic. It included William E. Kovacic (Professor, George Washington University Law School, Director of the GW Competition Law Center), Nicholas Banasevic (Head of Unit responsible for Antitrust IT, Internet and Consumer Electronics, DG COMP, Brussels), Paul Lugard (Partner, Baker Botts, Brussels), and James KRESS (Partner, Baker Botts, Washington DC).
The discussion started with a comparative analysis between the EU and the US regarding abuse of dominance. The panel explained how the EU had taken on a leading role in setting international norms and has become today’s “capital of abuse of dominance.” While both systems are considered to be “consumer welfare” orientated and follow an effects-based analysis, the US authorities appear to be more reluctant to bring proceedings based on abusive conduct. This is partly due to differences in procedure and to the level of US judicial scrutiny while the European Commission has had no “Airtours equivalent” on Article 102 cases. The US FTC and EU investigations of Google illustrate the different approach to enforcement. Changes in US enforcement could come from the use of Section 5 of the FTC Act which targets “unfair methods of competition” and new judicial appointments.