Report on the 41. FIW-Symposium in Innsbruck (February 6-8, 2008) (the german version was already published)
The 41.FIW-Symposium, which was held on the subject “Global Competition and National Competition Policies”, took place in Innsbruck from February 6 to 8, 2008. With more than 190 participants and keynote speakers including presidents and several high-ranking representatives both from national as well as international competition authorities, government officials, leading scholars and high profile lawyers from several different countries the conference continued to stress its growing importance as a platform in the international discourse over competition law and policy.
This year’s FIW Symposium, which was hosted for the first time by Margret Suckale, the new chairwoman of the FIW, featured the following speeches and panel discussion:
Ms Neelie Kroes, European Commissioner for Competition, made the first keynote address entitled “European Competition Policy in the Age of Globalisation – Towards a Global Competition Order?”. Ms Kroes started her speech by addressing the issue of fear caused by globalisation. Especially in times where citizens see factories close and activities move to other countries, it became more and more important to explain why free competition needed to remain at the heart of the European project. Competition enforcers needed to be able to show that the benefits derived from globalisation by far outweigh the losses.
If, however, European business wanted to continue to profit from the opportunities brought by globalisation, European regulators and policy makers needed to continue their work to keep markets open and competitive. To find truly global solutions two issues would be most important. On the one hand protectionism needed to be avoided and on the other hand anti-competitive behaviour by global actors needed to be prevented.
Acknowledging the well working collaborations that already exist between the EU and other competition authorities, Ms Neelie Kroes proposed to further extent and deepen them. The Commissioner pointed out that up until today an exchange of actionable evidence, which is the kind of information that is most useful for cartel investigations, is not yet possible. Thus, she promoted the idea of enhancing some of the bilateral agreements between the EU and other competition authorities so that an exchange of such information could be made possible among a small number of enforcers.
Professor Dr. Michael Hüther, Director of the Cologne Institute for Economic Research, focused in his speech on “New Protectionism through Defence against State owned funds”. Stressing the dangers that might arise from a protectionist attitude, Mr Hüther advocated a more liberal approach towards state owned funds. He pointed out that time consuming inquiries of foreign investment plans could bear an enormous risk especially for a country with strong external economic ties like Germany. As to the concerns that the purpose of the investments might be to secure control of strategically important industries for political rather than financial gain, Mr Hüther noted that these concerns were generally being overestimated. In his point of view, a refinement of the already existing rules of transparency as well as more confidence in the work of the competition authorities would be a far more adequate approach to conquer any remaining concerns over the influence of sovereign funds.
Professor Damien Neven, Chiefeconomist of the European Commission, spoke about “The More Economic Approach in European Competition Law and Policy”. In his speech Mr Neven compared the advantages and disadvantages of a form based approach with those of a full rule of reason or a structured rule of reason. Since in Mr Neven’s point of view there are only few instances in which effects can be clearly associated with simple criteria, he rejected the idea of a general adoption of simple rules. Especially in the case of horizontal mergers simple rules could be potentially harmful. To keep the balance between the demand for justice in concrete cases and legal security Mr Neven advocated the idea of working with sound principles, which leave room for investigating effects of the measure in question. Even though economic analysis could certainly not be a substitute for legal regulation, it should be recognized as a tool to better understand the dynamics of competition. In this context Mr Neven, however, also stressed the need to insist on using more than a single economic test to significantly increase the probability of reaching reliable and accountable results.
Dr. Mathias Döpfner, CEO of the Axel Springer AG, criticized in his speech that a “level playing field” in the German media sector was rather a wishful thinking than a reality. Private media companies would face more and more difficulties to sustain their position in this very competitive sector. While the independent press would already suffer from far reaching legal restriction on commercial advertisement, one of the biggest concerns of the German press at the moment would be that German media houses were not in the position to expand in the way necessary. In this context, Mr Döpfner pointed out that Germany’s Bundeskartellamt (Federal Cartel Office) compared to the EU Commission handled mergers inadequately strict. The resulting competitive disadvantages for German media companies foreclosed any development of an European level playing field in the media sector. Thus, in order not to have a competitive disadvantage Mr Döpfner favoured any proposals which would lead to the harmonization of the German and European merger control.
Dr. Bernhard Heitzer, President of the Bundeskartellamt (Federal Cartel Office), Professor Walter A. Stoffel, President of the Swiss Competition Commission and Dr. Theodor Thanner, Director General for Competition of the Austrian Federal Competition Authority, were part of a panel discussion entitled “Competition in the Energy Sector”. All three panellists agreed on the fact that structural measures were needed to create more competition in the energy sector. Whether ownership unbundling was one of the tools necessary was, however, one of the points the panellists disagreed on. In the course of the panel discussion both horizontal as well as vertical unbundling proposals and their economic and legal implications were being intensively discussed.
Bruno Lasserre, Président du Conseil de la Concurrence, spoke in his presentation about the need for guidance in the field of European competition law. He critically noted that at the moment missing guidance would often times lead to the undesirable situation, in which national competition authorities would apply the law in a not conform manner. This again would lead to legal uncertainties especially for enterprises, which without any experts’ advice were usually not any more in the position to differentiate which conduct was still legal or to foresee what kind of penalty payments might be expected in the case of a violation of competition law. Yet Mr Bruno Lasserre emphasized that by implementing further guidance the most important challenge would be to avoid imposing unnecessary bureaucracy. The goal should be both to promote a conform enforcement of European competition law as well as to support transparency in the application.
Dr. Bernhard Heitzer, President of the Bundeskartellamt (Federal Cartel Office), in his speech focused on the role of competition authorities in matters of politics and legislation. In this context, Mr. Heitzer objected to some of the recent decisions made by the German parliament. As to the decisions made in regard of minimum wages, the health care reform or foreign state owned funds he criticized the decision makers on having focused to little on possible negative effects on competition. In regard to the health care reform Mr. Heitzer for example regretted the lost opportunity to make greater use of competition as a motor to more efficiency. Thus, Mr. Heitzer promoted the idea to grant the Bundeskartellamt a more active role in the process of political decisions which impact competition. This suggestion, which was also picked up with a special interest by the press, gave rise to a highly interesting discussion following Mr Heitzer’s speech.
Professor Hannah L. Buxbaum, Associate Dean and Professor of Law at the Indiana University of Law in Bloomington, gave an American point of view on the differences in European and US American competition enforcement in her speech, entitled “Culture and Conflict in the Enforcement of Competition Law”. In her speech Ms Buxbaum brought up several reasons why it is not of particular help to position every approach to the differences in European and US American competition enforcement as an issue of “culture and conflict” instead of an issue of harmonization and coordination. Only by viewing it primarily as the later one, she said, could the hard work be done, which was necessary to manage the incremental reforms needed to reach a more optimal level of regulation globally.
Sir Christopher Bellamy, former judge of the European Court of First Instance and now Senior Consultant at Linklaters, spoke about “Trends in Private Enforcement”. Promoting an open attitude towards new procedural tools in the enforcement of competition law, Mr Bellamy acknowledged private enforcement of competition law as a very useful and effective tool which may have “more teeth” than some may think it to have. Mr Bellamy, however, was sceptical whether the European Commission might be able to implement an European system of private enforcement. If the Commission might not succeed, Mr Bellamy, however, noted that at least some individual member state would most probably come forward with their own system of private litigation.
Professor Dr. Wernhard Möschel, former President of the Monopolkommission (The German Monopolies Commission), discussed in his keynote address whether conflicts between differing competition laws should be remedied by harmonization of law or cooperation of authorities. In this context Professor Möschel, for one, declined any attempt of a half-hearted approach to harmonization since generally law systems did not work properly, if they were only implemented partially. Furthermore, Mr Möschel argued the need for precious laws and warned against the fact that a harmonization of law could run the risk of leading to less precise standards. Yet Mr Möschel noted the many advantages that go along with cooperation. In his point of view, cooperation with each other and sharing each other’s experience can help enormously to reveal the best practices in the enforcement of competition policies and help reach a more optimal level of regulation. Thus, Mr. Möschel favoured the alternative of cooperation over the one of harmonization. The discussion following the speech showed that many participants of the congress shared this view.
Professor Osheung Kwon, Chairman of the Korean Fair Trade Commission, addressed in his speech the latest developments in competition law and policy in East Asia. After giving an overview of the different competition law systems being enforced in East Asia, Mr Kwon went on focusing on the intended steps in modernization in respect to the Korean competition law system. In this context, Mr Kwon stated that the very first priority would be to work on a more optimal level of regulation to comply with global standards. Instead of a more or less strict orientation on the standards set by the US American or European competition law systems, Chairman Kwon, however, emphasized that Korea pursues to establish its very own approach.
In the last speech of the conference Professor William E. Kovacic, Commissioner of the US Federal Trade Commission, spoke about the existing divergences and convergences of US American and European competition law and policy. Since existing divergences were very costly for globally operating businesses, Mr Kovacic stressed the need to further engage in convergence efforts. Only a deeper understanding of the origins and the evolution of both systems, Mr Kovacic said, would help overcome difficulties that arise from the existing differences between the two systems. In Mr. Kovacic’s point of view, however, up until today far too few consultations took place. Thus, Commissioner Kovacic proposed that at anytime 10 people of the DG Competition should be at the FTC and vice versa. Furthermore, greater investments should be made in ex-post evaluation of any convergence effort to see what effects the measure had on the market.
The 42. FIW-Symposium in Innsbruck will take place from the February 25 to 27, 2009. The official languages of the symposium will be German and English. Simultaneous translation services will be offered both in German and English during the sessions in order to ensure that all participants have the opportunity to take part and benefit from the conference.