BAUDENBACHER Carl (dir.), Helbing Lichtenhahn Verlag, 2010, 343 p.

International Competition Law Forum 2009 - Current Developments in European and International Competition Law

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In April 2009, the 16th International Competition Law Forum was held in St. Gallen, bringing together experts in competition law for two days to discuss recent developments. This book brings together the papers presented on a variety of topical issues and the discussions that they generated.

In a context of economic difficulties, it is hardly surprising that Peter Freeman’s opening speech focused on the relationship between the financial crisis and competition policy. Breaking the prejudice that excessive competition is to blame, he points to a lack of regulation. He therefore calls for continued efforts in competition policy in this sector, while recognising the need for flexibility and realism.

This sentiment was shared by the speakers at the penultimate session, which was devoted to the restructuring of the banking sector. Walter A. Stoffel envisages in particular cooperation between competition authorities and other agencies. Manuel Sebastião also urged the former to gain a better understanding of the specific features of the financial system.

The first session deals with a completely different kind of restructuring. The revision of the Swiss Competition Act is indeed an opportunity to consider how to structure a modern competition authority. This is not, as Carl Badenbaucher points out, simply a matter of Swiss interest. Pieter Kalbfleisch, a member of the Dutch competition authority, draws on his recent experience of restructuring to stress the importance of the independence of an authority. Marcel Dietrich, depicting the current situation in Switzerland, makes the same observation. Impartiality, the ability to learn from experience, transparency, efficiency and flexibility are, in short, according to Frank Montag and Alistair Chapman, the essential attributes of a modern competition authority. Underlying this is a criticism of the current structure of the European Commission, which, by combining the functions of prosecution and judgment, would not meet the requirements of Article 6 of the ECHR.

The situation of the pharmaceutical industry is the subject of the second session. Some time earlier the Commission’s preliminary report on the competition inquiry in this sector had been published.

John Temple Lang underlines the overriding need for clarity in the definition of exclusionary abuses within the meaning of Article 82 EC. Analysing the practices pinpointed by the report, he points out that the mere exercise of procedural or substantive rights by a patent holder cannot in itself be anti-competitive. In any event, the Commission should not usurp the role of the regulator. Peter-Carlo Lehrell also warns against using competition law to correct flaws in patent law.

As a member of the Commission’s Pharma Task Force, Satish Sule is, among other things, taking stock of the "toolbox" available to innovative companies to prevent the entry of generics, and relaying their criticisms of the report during the public consultation. Thomas B. Cueni, of the European Federation of Pharmaceutical Industries and Associations, comments less on the report than he responds to it, denouncing its bias and harshness towards company practices that he considers legitimate and essential.

Steven A. Newborn exhibits at the opening of the second day an original "Art of War" revisited in the light of strategies using antitrust during hostile takeovers.

The first session then questions the emergence of a new policy on vertical restraints. Luc Peeperkorn of the European Commission pointed out that the review of Regulation 2790/1999 and its Guidelines, then under way, would not lead to a revolution, as the move towards a more economic, effects-based approach had already begun. However, some points for discussion, including the thorny issue of minimum prices, are presented. Marino Baldi criticizes the introduction of legal presumptions in Switzerland and raises the issue of systematization in competition law. He advocates overcoming the dichotomy of rules per se and rules of reason in favour of structured rules and intermediate standards.

The second session is devoted to the field of abuse of dominant position. European Commission official Carles Esteva Mosso presents her institution’s Guidelines on the application of Article 82 EC as the conclusion of an important round of reforms in the substantive application of EU competition law. The Commission would thus have opted for a measured approach, contrary to the September 2008 report of the US Department of Justice on Section 2, which was promptly withdrawn by the new Obama administration.

From this "dead report", Howard Rosenblatt and Héctor Armengod try to draw lessons, as regards the transatlantic divergences of the last eight years, the choices made by the European Commission, or the current priorities of the DOJ.

Finally, Nils Wahl, Judge at the Court of First Instance of the European Union, demonstrates the importance that the question of the degree of judicial review of the Commission’s decisions will take on in litigation if its analysis becomes more economic.

Another point of reform, the decentralisation of the application of competition law achieved five years earlier by Regulation 1/2003, is the subject of the third session. Carles Esteva Mosso recalled some of its elements and announced that the forthcoming report could not be the basis for a new reform: the tone was one of self-satisfaction. However, Theodor Thanner insisted on the need for cooperation, transparency and convergence between judges and competition authorities, particularly in a context of crisis. Joachim Bornkamm, underlining the interesting harmonising effect of the regulation, identifies the same needs.

After the session devoted to the restructuring of the banking sector, which has already been mentioned, there will be a final session devoted to the classic theme of sanctions for anti-competitive practices. Anna Tissot-Favre and Ewoud Sakkers take stock for the Commission and insist on their objective of dissuasion. However, they are sceptical about the desirability of sanctions against natural persons. Sir Christopher Bellamy, while referring to the "twenty-one damnations" threatening those who violate competition law, is less closed to this idea. Wolfgang Bosch, for his part, envisages the possibility of "rewarding" the efforts made by firms to comply with competition law - to which the Commission is currently showing little sensitivity - by reducing the fine under mitigating circumstances.

From the procedural to the substantive, including the institutional, the contributions review, perhaps sometimes a little too quickly, but always very clearly, a wide variety of competition law topics, thus providing interesting points of reference.

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Caroline Si Bouazza Derian, International Competition Law Forum 2009 - Current Developments in European and International Competition Law, December 2010, Concurrences N° 4-2010, Art. N° 33018, pp. 254-255

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