Antitrust Between EC Law and National Law (IV)
E. A. RAFFAELLI (ed.)

Barely two weeks after the entry into force of Regulation 1/2003 on anti-competitive practices and Regulation 139/2004 on merger control, the sixth conference organised by the Union des Avocats Européens and the International League of Competition Law was held in Treviso on 13 and 14 May 2004. The fourth edition of this event, opportunely devoted since 1997 to the topic of antitrust, between national and Community law, brought together around this theme such eagerly awaited actors and observers of competition law as European Commissioner M. Monti and former Advocate General G. Tesauro, then President of the Italian National Competition Authority. Their presence attests to the excellent quality of all the speeches, the proceedings of which are reproduced in this book, in English or Italian depending on the contribution.

In spite of what the confrontation of the date under the title of the colloquium might suggest, it is not the intention here to proceed with a new analysis of the profound procedural reform of the law of anti-competitive practices that has just taken place. Although this is at the heart of many of the contributions, the interest of these contributions lies in their common way of considering the reform of Community law as the starting point for new reflections and proposals for the improvement of substantive and procedural law. In this way, the conference opens the doors to the informed reader to future developments in European competition law, in interaction with the national laws of the Member States but also with foreign laws such as American law.

The twenty-two presentations are organized schematically around institutional and then material issues, but no ranking clarifies the order of presentation chosen by the organizers or editors. It is therefore only possible to give an account of the diversity of the subjects dealt with by proceeding to a synthetic reconstruction of the topics addressed around a guiding idea: if the reform carried out by Regulation No 1/2003 has achieved certain objectives of modernisation of antitrust law, particularly in that it renews the question of the relationship between Community law and national law, positive law must be considered as a transition towards new improvements. Each contribution thus deals with the modernisation of the law while maintaining a critical tension at all times.

The modernisation of the law is naturally addressed through the procedural implications of Regulation 1/2003. The decentralisation of the implementation of competition law has given rise to several studies on the role and effects of the action of national competition authorities and national courts. With regard to the former, Mr d’Alberti intends to show the contribution that the European Competition Network can make to the shaping of antitrust law, for example in terms of increasing the homogeneity of the law in the field of sanctions. The national courts are equally presented as the vehicle for the development of the application of competition law and its modernization, whether they act as ordinary judges (M. Tavassi) or as judges reviewing the decisions of the competition authorities, as shown by the speeches by R. Chieppa comparing Community and North American law or by J. Riffault-Silk recounting the French experience, in his capacity as President of the chamber of the Paris Court of Appeal responsible for appeals against decisions of the French authority. The question of the jurisdictional contestability by third parties of decisions to reject complaints or to close proceedings adopted by the Italian competition authority, dealt with by L. Vasques, also goes far beyond the Italian case, since he compares the situation with that prevailing before the Community institutions and makes proposals aimed once again at increasing the homogeneity of procedures. In so doing, he addresses the issue of transparency in the decision-making process on the basis of which the competition authority determines its competition policy. Finally, the authors all point out that there are still major divergences in the ways in which antitrust law is applied. They are very apparent in the field of leniency programmes, for example (M. Bloom), but they are mainly, and for no objective reason according to C. Canenbley, state divergences on such fundamental elements as procedures and sanctions. They thus give rise to certain strategies on the part of multinational firms which have to face significant transaction costs (for example, compliance programmes can no longer remain strictly national) and accentuate the need for exchanges of information between national, Community or US authorities. Finally, in addition to these last points, C. Cabella questions in a very original way the possibility of extending legal privilege to internal company boards. Finally, the general tone is set by I. van Bael, for whom the multiplication of competition law actors with their cultural, economic or political diversities is likely to have an impact on the application of the standard, all the more so as it is itself very permeable to such variations because of the very complex economic assessments it implies.

In this respect, the analytical criteria contained in the revised competition rules are the subject of another set of interventions, underlining the growth of economic analysis. The assessment of mergers in oligopolistic markets (M. Grillo and L. Magnani) and the general criterion of consumer welfare (A. Pera and V. Auricchio) are dealt with in a comparative US/European Community context, with a view to assessing the scope of reforms in these areas. In addition to this last contribution, two other studies have been carried out on the status of the consumer in the current system. On this subject, certain polemical remarks by E. Bonino and B. della Vadova will not fail to arouse reactions and discussions, while the extremely precise synthesis proposed by A. P. Victor and C. Roberts on consumer redress actions on the basis of US federal and state antitrust law are a timely contribution to the reflection initiated by the European Commission in its Green Paper on private enforcement.

The last aspect of antitrust law that reveals its dynamism and heralds its future developments is the variety of business sectors to which it applies. In this respect, interventions deal with issues as varied as those of business associations, the pharmaceutical market, professional sport or infrastructure projects involving private investment. If we add to this the accession on 1 May 2004 of ten new Member States, whose compliance with the competition rules is examined through the technical subject of the control of State aid and the effectiveness of interim measures (V. Di Bucci), it is easy to appreciate the extent to which the culture of competition is spreading in Europe.

In the introduction to the Colloquium, Mario Monti and Giuseppe Tesauro qualified, with caution but conviction, Treviso de Fordham of Italy; the high interest of the Conference held there proves that this comparison was not usurped.