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Competition policies. What a vast subject! The scope of the subject is not only spatial but also material. Submitted to the Prime Minister in September 2005, this report is in fact the result of a multidisciplinary approach that involved consulting a number of experts beforehand, but also publishing general comments and supplements on specific topics.
Unsurprisingly, the report begins with a review of the genesis and evolution of US and German competition policies before noting the growing role - though not without ambiguity as to its effects - of economic analysis as a basis for competition policy (Part I). A detailed analysis of Community competition policy then appears at the heart of the study (Part II), a central situation which begs the question whether the report under consideration might not have deserved a more precise title. Finally, the third and final part of the report contains general observations followed by recommendations.
The vast majority of economists agree on the merits of competition and the possibility of public intervention to preserve its mechanisms. This seems to be the end of the consensus, since variety dominates when it comes to defining competition, its intensity and form, but also the objectives of competition policy and its modes of intervention. Community policy is illustrative in this respect. Faced with this observation, the report formulates a message and measured recommendations that are reflected in the two levers envisaged to promote innovation and competitiveness. Firstly, competition policy must be considered in its relationship with other innovation policies and, secondly, the registers and instruments specific to competition policies must be examined, after having adopted the following proposal: Optimal competition is not maximum competition’.
The report therefore focuses on the complementarity of competition policies with other innovation policies (an issue which is the subject of a chapter completed by the contribution of Rachel Griffith). In doing so, the authors do not seem to be hostile to a certain voluntarism of innovation policies. (see cpdt. Professor Michel Mougeot’s nuanced commentary on the motivations of industrial policies). Observing treaties and practice, the authors are nevertheless forced to note the pre-eminence of competition policy over industrial and research policies. The recommendations on this point are therefore limited and consist in allocating the resources derived from the fines imposed by the Community competition authority to research and innovation in Europe. The second proposal, which is more limited in scope, is essentially aimed at promoting industrial cooperation between Member States and could be described as rather vague (see the generally approving comment by Jean-Hervé Lorenzi).
The second dimension of the report’s proposals is the promotion of competitiveness and innovation within competition policy. At Community level, the aim is firstly to limit interference between merger control, described as preventive intervention, and other innovation policies by establishing closer cooperation between the services of DG Competition and other Directorates-General (Industry, Research). A more frequent use of behavioural commitments is also advocated. At the French level, the report focuses on the duality of supervisory authorities. Without calling into question the decision-making powers of the Minister of the Economy in the field of mergers, the report makes proposals along two different lines: providing for the notification of all merger operations to the Competition Council or keeping the current system in a renovated form (comp. with the addition of François Brunet). Finally, the report paints a fairly critical picture of the criteria used in the Community control of state aid and suggests that Member States should be given greater latitude to grant aid to firms in difficulty, a latitude which should be subject to a posteriori control.
In a cross-cutting manner, the study stresses the need to give greater weight to efficiencies in the treatment of concentrations or practices falling under Articles 81 EC and 82 EC. Effectiveness is also a principle that should guide the practice of supervisory authorities. In this context, leniency programmes appear to be appropriate instruments for the detection of cartels, but have the disadvantage of encouraging the creation of cartels. Economic studies have suggested increasing the effectiveness of leniency programmes by remunerating the first informer (see Laurent Flochel’s supplement).
The report repeatedly stresses the instruments used to implement competition policy and calls for a departure from the rules per se (see Anne Perrot’s supplement on abuse of dominant position). However, it is worth recalling that this task will be difficult if, as a passage in the report suggests, the per se rules are so broadly defined that the Sherman Act sets out rules of prohibition per se (p. 23). On the other hand, it is reasonable, as the report does, to promote the use of a structured rule of reason. The basis of such a proposal is moreover explained in the supplement written by David Spector. The approach adopted by the authors also justifies the report’s proposal to abandon in France the prohibition per se of resale below cost, which should be controlled by the competition authorities.
Finally, it should be noted that the report gives a succinct opinion on the specific category of sectoral regulation (see, however, Philippe Choné’s supplement on the link between competition policy and sectoral regulation).
On reading this study, even the most rigorous jurists will be able to express some regrets. The result of numerous consultations, this multidisciplinary report, like some of its supplements, suffers from some approximations and even rare errors which, without calling into question the findings and recommendations made, reflect the delicate interpenetration of economic analysis and legal analysis.
