EU-US Antitrust Enforcement : The Atlantic Dialogue

Dîner-débat organisé par la Revue Concurrences en partenariat avec White & Case et Analysis Group

Mark Gidley

Mark Gidley introduced Roger Alford, Deputy Assistant Attorney General for international affairs with the Antitrust Division of the US Department of Justice (DOJ).

Roger earned his BA at Baylor, Texas, and obtained his JD from NYU, first of his class. He also has degrees from Edinburgh University and Southern Seminary. He clerked for Judge James Buckley of the US Supreme Court of Appeals for the D.C. circuit, and latter on for Judge Richard Allison of the Iran-US Claims Tribunal, which is the cutting edge of the international law scene.

After that joining private practice in Hogan & Hartson (now Hogan Lovells), Roger has chained a series of stellar academic appointments and has published multiple articles on the extraterritorial claims act, the extraterritorial reach of the Sherman Act (SA), the extraterritorial reach of the EU laws, contrasting the two. The DOJ and the American people are very fortunate to have someone from academia who has spent so much time thinking about these issues.

Roger Alford

Having been in the job for only five months, Roger has been to Europe already four times.

Roger explained that his background is not very traditional for a Deputy Assistant Attorney General for the Antitrust Division of the DOJ. Roger’s background is international law, and more in particular on the nexus between private and public international law. This means real expertise in trade and arbitration, both of which are international economic law corollaries to antitrust.

However, what intrigued him about the opportunity to serve at the DOJ was the opportunity to focus on antitrust policy from the perspective of someone who is an expert in DOJ international law. Such a focus could elevate the antitrust discussion in terms of international law.

Makan Delrahim came to him because he was interested in more enhanced international engagement. During Makan’s Senate hearing he emphasized his desire to focus on international engagement. It has been a longstanding passion of his. Makan recognises that the landscape of antitrust has changed dramatically in the past 15-20 years. The most dramatic difference is the increase of national agencies around the world and those agencies flexing their muscles.

Roger raised a number of questions in this regard. What should we do in such a world to promote robust standards ? Are there other ways to promote cooperation in addition to the ICN and OECD ? How do we increase transparency ? How do we make sure that industrial policy does not impact antitrust enforcement ?

In a way these questions are not new. But looking into Makan’s agenda, he is a person of true energy and ideas. Because he has done antitrust for so long in private practice, on Capitol Hill, and at the DOJ, DOJ he really does know and think about antitrust in a very broad and creative way. What that means is that he is willing to think about antitrust and how to enforce it in ways that are more beneficial to consumers.

One can only recommend that you read Makan’s speeches to appreciate this perspective. They convey a predilection for structural remedies instead of behavioral remedies, which means that merger reviews are going to be “different.” Another objective in his agenda is removing legacy decrees from the books that regulate product markets that do not exist anymore or have become obsolete. Makan also has scheduled some roundtables to look into anticompetitive regulations and various exemptions and immunities that harm consumers.

Roger underscored the strong and steady relationship between the DOJ and DG COMP. Roger’s objectives in this respect are to accentuate the strength of this relationship and to communicate and explain to the public what happens on a day-to-day basis when both agencies cooperate (which happens more often than one would expect or sees). Although there remain some differences, there is an overwhelming sense of convergence. This message is crucial to encourage other agencies from around the world to follow the same path.

Following questions from the audience, Roger explained what he thought to be the main similarities and differences between US and EU.

Similarities :

  • There is a real sense of willingness, ability and desire to work together on cases supported by a strong mutual respect.

  • There is a strong sense that “do no harm” is the appropriate standard. Both DG COMP and the DOJ and FTC continue to be traditional in the scope of antitrust and corresponding theories of harm.

  • The approach in mergers is very similar, both at the analysis and remedies levels.

  • The existence of strong deterrents against cartel behaviour. In the US by means of criminalization and in the EU by means of very large fines.

  • Importantly, at an enforcement level, transparency and due process are, notwithstanding the different models, core tenets of both jurisdictions.

Photos © Emilie Gomez

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  • Analysis Group (Paris)
  • White & Case (Washington)
  • White & Case (Brussels)
  • University of Notre Dame
  • European Commission