Thierry Dahan (French Competition Authority): «The Seven Year Itch»

– You do not believe in the improvements brought about by the reforms, for example the new powers of the Authority?

– By broadening its competences and increasing its notoriety and visibility, the Authority should become more attractive. So we can be optimistic?

– What advice would you give to motivate reporters?

– Among the new elements that have emerged over the last ten years, there is of course the development of alternative procedures: transactions, commitments, leniency. This has been a big change?

– Leniency has been the strongest innovation at national and Community level. What can you tell us about the history of this procedure in France?

– What else?

– How do you view the settlement, which is the alternative procedure in which the general rapporteur plays the greatest role since he can refuse to enter into it? The College has, moreover, granted him this power, subject to a check for manifest error.

– Yet the overall number of transactions is constantly increasing, whether in abuses or cartels.

– What about the half-case?

– How does the fact that the offence being prosecuted is a cartel complicate matters then?

– You are therefore pessimistic about the possibility of changing the settlement procedure in the direction that companies are demanding, i.e. a real negotiation on the sanction in return for their failure to challenge a settlement?

– However, one gets the impression that the creation of the Single Authority does indeed consist in bringing the French institutional system closer to a majority model in Europe, a process which has nevertheless taken more than twenty years to complete.

– Yet you yourself have often explained publicly that the investigation services of the Competition Council function more like a public prosecutor’s office.

– The French institutional system is now stabilised since the inconsistencies you have pointed out have disappeared, but can it be improved further?

– Except in the United States where the jurisdictional model prevails.

– However, this trend is being called into question by the Obama administration, which has expressed its desire to reverse the trend and develop a genuine public competition policy.

– How, then, is it possible to understand the idea that an independent authority could conduct a competition "policy", a possibility which is recognised by the Commission in the Court of Justice, but which is also mentioned or claimed by the French Authority?

– Your analogy only works if we can clarify what we mean by protecting the spirit of the competitive game. It’s not in the texts. An antitrust authority must apply the law and respect the case law. Where is its room for manoeuvre?

– This is the thesis of your article on "competitive regulation". In your opinion, we do not draw all the consequences from the fact that markets are not self-regulated and that they need real regulation to function well.

– Finally, does the emphasis on consumer welfare, which seemed to be an argument used by economists to challenge traditional jurisprudence of more structuralist inspiration, backfire on its initiators?

– But this position in favour of competitive regulation by the antitrust authority is only tenable with the support of judges. If the Court of Appeal and the Court of Cassation do not follow, we will have to comply with their case law.

– And the second answer?

– This conception of competition law as regulation also raises the problem of articulation with sectoral regulators.