Thomas O. Barnett (DOJ) : "Towards greater procedural convergence between the US and the EU"

– You have been trained in both areas of Law and Economics and you have spent training years both in the United States and in Britain. Can you highlight your inspiration during those university years ? Who were your intellectual mentors ? What caused you to chose antitrust as your professional area ?

– During the hearings in Congress for your confirmation, which areas have given rise of questions from Congressmen ? Do Representatives and Senators have some favourite questions that could determine a preferred area for each of the House and of the Senate ?

– Do you think the Sherman Act remains the economic Constitution of the United States as was expressed by a renowned Chief Justice of the 1950s ?

– How would you characterize the main differences between the Antitrust Division you head and the Federal Trade Commission ? Do these agencies have areas of priorities that differentiate them ?

– What can you tell us about the main areas of potential evolution - in effective practice - of the US Antitrust Law which are now being discussed by the Antitrust Modernization Commission ?

– Do you think about setting priorities of enforcement or do you simply consider that Antitrust authorities should mainly remain reactive to cases brought to them by the market operators ? What are the “hottest” areas for the US Antitrust nowadays ?

– How do you view the evolution of the State Action Doctrine in the US ? In other words, do you think that the States should accept in the US to limit more immunities or exemptions to Antitrust Laws or is it an area where the present balance between the Federal and State authorities has reached an equilibrium ? Are there identical views among the Antitrust Division and the FTC ? Is there a potential for introduction of State Aid controls by Competition Agencies in the US as this exists in the EU ?

– You are the Chairman of the Working Party on international cooperation in enforcement at the OECD. What main lessons do you draw from your experience as the Chair of this working party (on the Organization itself and on the types of discussions) ?

– To speak more specifically on the last three roundtables you chaired on public/private enforcement at the OECD, what are the main conclusions you can draw from these roundtables ? What are the differences between the United States and the European Union ? Where are the best areas of convergence ?

– Can you cite some recent Class Actions in the United States that have been particularly profitable for consumers ? Do you favour “stand alone” Class actions (direct class action) or follow on “Class actions” ? For instance, in the Dagher case, plaintiffs (who were professionals and not consumers) were in a “stand alone” type of action : do you think Courts are well equipped to treat such cases ? Under which conditions can “stand alone” actions be successful ?

– In their process of Modernization, what would you advise the Europeans to do and not to do ? Would you consider that the EU is undergoing an Antitrust Revolution like the United States did in the 1980s ?

– Is an Antitrust network likely to happen or be constituted in the United States as it is the case in the EU with the European Union Competition Network ?

– After the EU has completed its Modernization process of Article 82, what should be done next ?

– Do you have any expectations to strengthen the international bilateral cooperation between the EU and the US or between the US and some Members States ? Do you think it is necessary ? Have you views on that ?

– You do not see the need to strengthen the existing formal bilateral agreements between the EU and the US at this stage ?

– To conclude, how do you consider the future evolution of the International Competition Network ? Do you have any priorities in this respect ?

Interview réalisée par François Souty, DRCCRF, Nantes.