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What adjustments are needed in competition law to cope with the increasing internationalisation of anti-competitive practices and mergers? Habib Kazzi’s book, the product of a doctoral thesis defended on 27 October 2006 at the University of Paris X under the supervision of Professor J.-M. Thouvenin, is a significant work of synthesis on this topic. The subject is highly topical, as evidenced by the symposium held at the University of Burgundy in June 2007, the proceedings of which have recently been published (V. Mondialisation et droit de la concurrence - Les réactions normatives des États face à la mondialisation des pratiques anticoncurrentielles et des opérations de concentration, Litec, 2008, see below).
The globalisation of trade and the increasing number of cases with an international dimension are a challenge for competition policies. By dissociating the territory where they are decided from the geographical area where they produce their effects, they reveal the inadequacy of internal control instruments, complicate the commercial strategies of companies and call for greater cooperation and convergence of national competition laws. Taking note of these difficulties, Mr Kazzi’s work has a twofold purpose, around which the plan is structured. Firstly, it aims to take stock of the situation by studying in detail the fundamental changes that characterise the current international context, highlighting the upheavals brought about by the globalisation of the economy with regard to competition controls. Secondly, it aims to examine possible solutions, in particular by studying the process of cooperation and convergence of antitrust legislation at the international level.
The first part, which is very rich, highlights the cacophony of a system based on the multiplication of national or regional systems of competition and underlines its unsuitability to the phenomenon of globalization of anti-competitive practices. The author notes, first of all, a phenomenon of multiplication of competition laws, encouraged by the various institutional mechanisms for cooperation and technical assistance set up by developed countries and the competent international organizations. The international legal environment is conducive to the proliferation of the number of national competition authorities and technical assistance programmes, which propagate a genuine competition culture, particularly in developing countries. This movement goes hand in hand with a strengthening of the legitimacy, autonomy and transparency of supervisory authorities. The developments in the second sub-section of this report are the focus of attention. This proliferation of competition authorities, which leads to significant differences in approach, contrasts with the international nature of the planned transactions. The author analyses the diversity of approaches both in the area of behavioural control (from the dual perspective of discovering and dealing with anti-competitive practices) and in the area of structural control, characterised by a lack of coordination between the supervisory authorities, to which are added divergences in the objectives and legal treatment of commitments. This comparative law analysis, in particular the developments in merger control (pp. 231 et seq.), will be read with great benefit.
The inadequacy of the system is also confirmed by the adverse effects of the unilateral implementation of competition law. On this point, the very detailed developments relating to the development of the extraterritorial extension of competition law (pp. 255 et seq.) or the recourse to police laws (pp. 325 et seq.), which contribute to the reinforcement of the compartmentalization of national control systems, should be noted.
In the second part, the author examines the responses provided and notes the difficulties of promoting a genuine international competitive order, both from a political and technical point of view. The response of States to the internationalization of restrictive competition practices clearly shows that priority is given to the coordination of national laws and the establishment of a climate of trust between supervisory authorities. This process is articulated in two movements. First, it consists of increased cooperation between national competition authorities, most often through bilateral agreements, with the aim of limiting the concurrent application of antitrust laws. The author stresses the more advanced nature of the treatment of conflicts of jurisdiction introduced by Regulation 1/2003 (p. 398). However, this coordination remains limited, being based on a voluntary basis.
Secondly, the strengthening of cooperation is accompanied by a phenomenon of convergence of antitrust regimes. The author examines the potential benefits of a multilateral framework agreement on competition within the World Trade Organization (WTO) for the effective enforcement of competition policy, while highlighting the legal and political obstacles to such enforcement. In the absence of such an agreement, a unilateral approximation based on a common model of competition law is sufficient, within which the economic approach to competition law, which is characteristic of United States antitrust law, is gradually gaining ground, both in the analytical approach and in the objectives and scope of competition policy, which are tending to converge. Finally, legal instruments for cooperation at the international level are being developed. In this context, the establishment of the International Competition Network (ICN) remains the major innovation.
If the developments in this second part are quite thorough, they seem less convincing. It is regrettable that, in most cases, they confine themselves to identifying existing solutions, to the detriment of a truly critical and innovative approach. Beyond the examination, which is certainly quite exhaustive, of the response of States to the challenges and obstacles raised by the internationalization of anti-competitive practices, we are sometimes a little hungry. This is the case for developments devoted to the CCM or the mechanisms for dealing with conflicts of jurisdiction outside the community framework. This criticism does not, however, call into question the interest of the research, which should be taken into consideration given the richness and acuteness of most of its developments.
