Reminder: The 36th Lunch Talk of the GCLC will take place on 24th October in Brussels with Anne Houtman (Director at the European Commission) and Ulrich Soltész (Partner at Gleiss Lutz) as speakers. Registration can be found here.
On Friday 5 December, the University of Luxemburg organizes a promising conference on how firms may instrumentalize legal norms and procedures to gain a competitive advantage (or inflict to their rivals a competitive disadvantage).
My colleague Miguel Rato and I just posted a new paper on ssrn. It is entitled "From Hard to Soft Enforcement of EC Competition Law - A Bestiary of 'Sunshine' Enforcement Instruments".
Please find hereafter the abstract:
For a number of reasons - notably its limited administrative resources - the European Commission ("the Commission") seems to be relying increasingly on methods of competition law enforcement based on informal pronouncements (press releases, oral statements, etc.) and soft law instruments. Surprisingly, and in stark contrast with the extensive body of literature devoted to the Commission's more muscular enforcement initiatives under Articles 81 and 82 EC and the EC Merger Regulation ("the ECMR"), the pervasive use of soft law and informal legal instruments in European Community ("EC") competition policy has gone relatively unnoticed.
In our view, these alternative mechanisms of competition law enforcement raise many important legal questions - not only theoretical but also of very significant practical relevance. For instance, is compliance with such instruments mandatory? Are they amenable to judicial review? Can they introduce new legal standards that depart from established case-law? To what extent can they be relied upon as a reference for competitive assessments, etc.?
The aim of this article is therefore to provide a broad picture of the various formal and informal instruments through which the Commission carries out the soft enforcement of EC competition rules. We refer to them as "sunshine enforcement" instruments and explain the reasons behind this label in Section I. We then provide a typology of those various instruments in Section II. Finally, we explore their advantages and drawbacks in Sections III and IV respectively. Section V concludes.
N. Petit: In the past, many have criticized the relatively weak enforcement record of the Belgian competition authorities. How do you intend to reinvigorate Belgian competition policy?
J. Steenbergen: The new legislation has significantly reduced the number of merger notifications by raising the thresholds and facilitating decision making in simplified merger control procedures. Even in a year that has seen a boom on M&A markets, we only received 20 notifications. Most could be cleared in simplified procedures. That has enabled us to use approx. 80% of our resources for investigations in respect of restrictive practices (in stead of less than 20%). This and a few other measures have given a new drive to a team that is eager to do a job that is seen to be useful and interesting.
N. Petit: You have said that merger control was not a necessity for small economies. Shall that be interpreted – that point has been made in Scandinavian countries – that merger control systems prevent firms from small economies to achieve the critical mass required to compete on global markets?
J. Steenbergen: First, we were discussing really small economies like Luxembourg, Iceland (with less than one million inhabitants) or Liechtenstein. I have added that some economies with the size of a metropolis like Belgium, Switzerland and most of the Scandinavian countries might be in a grey zone. This being said, I am convinced that countries like Belgium should first make sure that they have the means to fight cartels and abuses of dominant positions. I have therefore not said that merger control is a superfluous luxury for countries with 5 to 10 million inhabitants, but it is perhaps a luxury.
N. Petit: The European Commission just adopted a white paper which aims at promoting private enforcement in the field of competition law. What is your opinion on the issue of private enforcement? Isn’t there a risk of imposing excessive constraints on market players?
J. Steenbergen: Personally, I believe that the business community is mostly interested in efficient interim relief in order to stop infringements before the damage occurs – and when we look not only at damages cases but also at interim relief cases, there is more private enforcement than is often suggested. I also see that many are very much opposed to punitive damages and American style disclosure procedures (of which the US also tries to limit the cost). I therefore think that in respect of private enforcement, we should focus on the availability of efficient interim relief and that we should facilitate procedures that enable the victims of competition law infringements to obtain damages after the infringement has been established by competition authorities. We must e.g. facilitate the calculation of damage and assist national judges who need to establish the causal link between an infringement and the damage suffered by direct and indirect clients of the infringing companies. Belgium has suggested examining whether we could not give more useful indications in the infringement decisions. We also think about formulas that allow taking into account the compensation of victims when determining sanctions.