Standing up for Convergence and Relevance in Antitrust, Frédéric Jenny Liber Amicorum

Nicolas Charbit, Sonia Ahmad (Editors)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to stephane.rodrigues-domingues@univ-paris1.fr for review in this section.

*This article is an automatic translation of the original article in French, provided here for your convenience. Read the original article.

Establishing a liber amicorum is never an easy task. The task becomes daunting when it comes to paying tribute to a figure whose international influence has reached such heights in economic, legal, political and human terms. Frédéric Jenny was able to create within the OECD a space for free discussion, without constraints of commitment on the part of the authorities, but with a high level of scientific rigour, where the disparity of points of view and the wealth of shared experience have, over time, made it possible to create a basis for a common culture of competition. This has led to very strong personal links with institutions such as Andreas Mundt (BKAmt and ICN), Diane Wood (United States), John Pecman (Canada), Allan Fels (Australia), Igor Artemiev (Russia), Han Li Toh (Singapore), Hiroyuki Odagiri (Japan), Pablo Trevisán (Argentina), but also with seasoned practitioners such as Enrico Adriano Raffaelli, Santiago Martínez Lage, Helmut Brokelmann and John Davies (Compass Lexecon) or younger people who have been encouraged in their vocation, as Yannis Katsoulacos, Svetlana Avdasheva and Svetlana Golovanova, Caron Beaton-Wells, Julie Clarke, and links with eminent academics such as Scherer (Harvard), Rubinfeld (Berkeley and NYU), Ivaldi (Toulouse) and Fox (NYU). These authors contribute to the first volume of the tribute with which so many personalities wanted to be associated.

The book begins with a historical approach to multilateral international cooperation, to which Frédéric Jenny has dedicated all his efforts. Two articles deserve to be read as a pendant: the European vision presented by Andreas Mundt and the American vision by Diana Wood. Andreas Mundt takes us back to the infancy of the famous Draft International Antitrust Code in 1993, also known as the Munich Code, which was intended to be the prefiguration of a future world competition law, and in the same vein the Jenny report in 1995, which was commissioned by Commissioner Karel van Miert when Frédéric had just been appointed head of the OECD Competition Committee. This led to his appointment in 1995 as head of the WTO Working Group on the Interaction between Trade and Competition Policy (WGTCP) to promote a future common competition law in the WTO. The objectives and work of this WTGCP led to tensions with the US authorities. In response, they established the International Competition Policy Advisory Committee (ICPAC) in 1997, which led to the creation of the ICN in 2002. Then, pressure to abandon the WTO Working Group prevailed at the Cancun summit in 2004. One could have imagined a bitter retreat. On the contrary, an over-involvement of the EU in the NAI was undertaken by Commissioner Mario Monti and all EU NCAs. Similarly, Frédéric Jenny, while raising the work of the OECD to a level of excellence, has ensured constructive cooperation with the NAI. Andreas Mundt’s work in the NAI is a testimony to the intensity of the exchanges with the OECD, the complementary nature of the institutions’ profiles, the way they operate and the response to distinct needs ("Development of Multilateral Cooperation from a National Competition Authority’s Point of View"). The OECD appears to be the great scout, at the forefront, as Andreas Mundt points out, mentioning the latest work that is so burningly at stake (multi-sided markets, online markets and vertical restraints, big data, algorithms and collusion, disruptive innovation). His personality will have largely counted on the intensity of exchanges and the interpenetration of work between competition authorities around the world, experts and practitioners. This could never have been imagined twenty years ago. And yet, on the strength of this momentum, John Pecman and Duy Pham call for even more audacity and creativity to renew cooperation ("The Next Frontier of International Cooperation in Competition Enforcement").

With regard to the road travelled, the American point of view expressed by Diane Wood is clear: only soft harmonization could be envisaged ("Frédéric Jenny and the Harmonization of National Competition Laws"). To this end, the OECD’s working method, based on the format of round tables and discussions on report presentations, has proved extraordinarily fruitful in a climate of confidence and intellectual emulation. The deepening and dissemination of common bases for a culture of competition are such that it considers that consumers around the world should express their gratitude to Frédéric Jenny.

Several testimonies on the benefits resulting from the interaction between the global and the local level follow with Pablo Trevisán ("Due Process and Competition Law: Global Principles, Local Challenges, An Argentine Perspective"), Han Li Toh ("Convergence and Divergence in Singapore’s Competition Law Regime") and Hiroyuki Odagiri ("The Deepening Interaction of Economics and Competition Policy: Overview and the Japanese Example").

The second part of the book concerns the work of economists. Frederic Scherer focuses on the very delicate assessment of efficiencies in merger control. He argues that only a minority of mergers produce efficiencies that benefit consumers and economic growth. He recommends the utmost caution in balancing these gains against anti-competitive effects, supported by ex post assessments to strengthen the skills of merger negotiators ("Merger Efficiencies and Competition Policy"). Daniel Rubinfeld ("The Antitrust Economics Treatment of Standard Essential Patents - the EU vs the US") is studying a major disparity between the US and the EU. It tends to show that the power tilts in favour of the licensees and justifies remedies in favour of the licensees. Yannis Katsoulacos, Svetlana Avdasheva and Svetlana Golovanova propose to assess the degree of penetration of economic analysis in decision-making practices ("A Methodology for Empirically Measuring the Extent of Economic Analysis and Evidence and for Identifying the Legal Standards in Competition Enforcement"). This should promote comparative analysis and minimise decision errors. Marc Ivaldi and Vicente Lagos examine the test for measuring the incentive to engage in parallel behaviour after a merger ("How accurate is the Coordinate Price Pressure Index to Predict Mergers’ Coordinated Effects?"). Ian McEwin discusses the situation of competition authorities in developing countries ("Why Economists Should Design and Enforce Competition Laws in Developing Countries"). Adopting the effects-based approach, like developed countries, requires complex analysis, which is increasingly difficult and inaccessible to them. In his view, the question therefore arises whether sometimes, to get to a destination, it is not better to drive a Renault than a Rolls-Royce. David Gilo argues for the central role of private enforcement in sanctioning dominant firms for excessive pricing ("Excessive Pricing by Dominant Firms, Private Litigation, and the Existence of Alternative Products"). Since public enforcement has limited resources and focuses on the horizon of a possible entry of a competitor, it is interesting to note that, by contrast, the judge confines himself to the present moment of harm to the consumer resulting from excessive pricing.

The third part deals specifically with enforcement issues. John Davies returns to the strong challenge in the United States to consumer welfare following Lina Khan ("Means and Ends in Competition Law Enforcement"). The question is whether the objectives of competition policy should be extended to values such as greater equality, employment and economic development. Although these values are morally appealing, the author cautions in the name of efficiency that they may be better served by applying the consumer welfare test. He calls for ex-post evaluations, which is paradoxical: how can this be done if the authorities are deterred from using them? Caron Beaton-Wells and Julie Clarke reveal the extent to which the OECD’s work has made it possible to reveal how far Australia has lagged behind other authorities in setting fines for deterrence purposes ("OECD-Inspired Reform, The Case of Corporate Fines for Cartel Conduct"). Allan Fels shares his experience as head of the Australian authority that oversees both competition policy and consumer protection policy ("Should Competition Authorities Perform a Consumer Protection Role?"). He skillfully balances the positive and less positive effects. Enrico Adriano Raffaelli discusses the general relationship between regulation (ex ante intervention) and competition policy (ex post intervention), and then focuses on the application of competition rules to a highly regulated sector: pharmaceuticals ("Regulation and Antitrust in the Pharmaceutical Field"). It notes certain forms of overlap and questions the usefulness of the intrusive nature of the application of competition rules. Igor Artemiev outlines Russia’s national plan to combat unfair competition, cartels and abuses of dominance by Internet giants, focusing on the settlement negotiated with Google in April 2017 ("New Challenges for Anti-monopoly Regulation in the Digital Economy"). This subject is also explored through the prism of EU law by Gönenç Gürkaynak, Ali Kağan Uçar and Zeynep Buharali ("Data-related Abuses in Competition Law"). The Turkish view is cautious but very much aware of the richness of the debates within the competition authorities and the malleability of the case law of the Court of Justice. The silence on US law applied in this area speaks for itself. Finally, Santiago Martínez Lage and Helmut Brokelmann argue for the arbitrability of claims for damages by exploring German case law following the famous CDC Hydrogen Peroxide ruling handed down by the Court of Justice in 2017 ("The Arbitrability of Follow-on Damages Claims").

In the conclusion of this first volume, Albert Foer and Eleanor Fox return to the place of non-economic values in competition policy. Albert Foer focuses on one of the most celebrated values in the United States: freedom of speech ("Revisiting the Political Content of Antitrust: The Changing Role of Speech"). His speech tends to demonstrate that it ultimately has economic value and deserves stronger protection under antitrust law. Eleanor Fox also refers to freedom of speech: "(...) democracy requires markets, just like free speech". With her well-known conviction, she recalls the interaction between democracy and markets (Democracy and Markets: A Plea to Nurture the Link). She regrets that this initial link has disappeared in the United States, but welcomes the fact that it has been maintained in the European Union and is an objective in developing countries. The developing countries were trying to eradicate the privileged economic interests that were capturing the well-being of their populations. Democracy is weakened when markets no longer serve the people. This observation, which is well known in Europe, has become a worrying reality throughout the world. After such a festival of contributions, expectations are high for the second volume.

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  • University Paris I Panthéon-Sorbonne

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Catherine Prieto, Standing up for Convergence and Relevance in Antitrust, Frédéric Jenny Liber Amicorum, May 2019, Concurrences N° 2-2019, Art. N° 90050, pp. 262-263

Publisher Concurrences

Date 1 January 2019

Number of pages 388

Visites 192

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