International Antitrust: From the failure of regulation to the promises of effective enforcement

2.   The Failure of International Regulation on Competition

A. The Vain Pursuit of International Antitrust Rules

            The idea of establishing some international rules regarding competition is nothing new. Indeed, the International Trade Organization (ITO) negotiated in 1948 included some provisions on exclusionary practices. With the failure of the ITO, the GATT chose to keep a simpler set of rules and did not include antitrust. However, international competition rules remained on the agenda. As Professor Mavroidis explains, the main argument for creating antitrust regulation within the WTO is based on the idea that governments’ diminished abilities to employ protectionist trade instruments following extensive trade liberalization drive them to resort to antitrust laws to pursue the same objectives [7].

Negotiations started in 1996 with the Singapore Ministerial Conference which set up the Working Group on the Interaction between Trade and Competition Policy “to study issues raised by Members relating to the interaction between trade and competition policy including anti-competitive practices, in order to identify any areas that may merit further consideration in the WTO framework”[8]. Later, during the Doha Round of 2001, the conference “recognized the case for a multilateral framework to enhance the contribution of competition policy to international trade and development, and the need for enhanced technical assistance and capacity-building in this area.” This statement created hope that on antitrust rules would be put in place within the framework of the WTO [9]. However, three years later, in the in the “July 2004 Package”, the WTO General Council decided that the issue of antitrust would “not form part of the Work Program set out in that Declaration and therefore no work towards negotiations on any of these issues will take place within the Doha Round” [10].

The negotiations failed because no consensus could be reached [11]. Why was this the case? First, the very nature of the WTO principles represents an important barrier to the entry of antitrust rules. The principle of non-discrimination is the most important WTO principle. If we apply it to antitrust, it would mean that national competition legislation could not discriminate because of the company’s country of origin. This may not appear to be a problem. However, this principle would also imply that these rules are applied in the same way to national and foreign companies. This can be very difficult to prove since antitrust rules are applied on a “case-by-case” basis, the anticompetitive practice being identified with numerous factors. For example, concerning monopolization, European Courts identify an abuse of dominance under Article 102 TFEU using proportionality analysis, requiring four categories of evidence: (1) exclusionary conduct, (2) actual or potential effect on competition (3) absence of objective justification and (4) prejudice to consumers [12]. The United States has a very similar approach with its “rule of reason” analysis [13].

Second, a part of the literature has focused on the problem that WTO Members are at different levels of development and this has made it difficult to harmonize. Indeed, some countries which are Members of the WTO do not even have a competition policy [14].However, this argument is not very persuasive since there is a whole series of exceptions to the WTO rules for developing countries in order to tackle this problem. For example, the mechanism of the “enabling clause” allows developed countries, on a voluntary basis, to treat developing countries differently notwithstanding the principle of non-discrimination [15].

Third, some legal commentators state that it is mainly because of disagreements between the USA and the EU that negotiations have failed [16]. However, this argument fails to acknowledge that trade officials at the US Trade Representative and the EU’s Directorate General for Trade both supported the inclusion of antitrust within the WTO. It is true that not all countries have an incentive to build an international antitrust system. Professor Guzman observes in this context that there are two kind of countries regarding antitrust: the “under-enforcers” and the “over-enforcers” [17]. Indeed, if a state is a net importer, it has an incentive to build stricter antitrust standards in order to protect its national companies. On the contrary, if a state is a net exporter it has an incentive to enact lenient antitrust laws in order to create a favorable environment.

Finally, private interests have been largely absent from the quest for antitrust rules. As Professor Bradford explains, “in the absence of a strong domestic interest group support governments have not invested their capital in negotiating an agreement that would confer limited, if any, political rents to them”[18].This might seem odd because most corporations would benefit from good, world-wide, antitrust rules. However, the reality is quite different; antitrust laws in most jurisdictions are enacted to enhance consumer welfare. Take the example of the EU antitrust system. In its Vertical Guidelines, the European Commission clearly stated that “protection of competition is the primary objective of EC competition policy as it enhances consumer welfare and creates an efficient allocation of resources”[19]. In the USA, the situation is exactly the same [20].Corporations oppose international regulation on competition mostly because they fear the development of harsher rules at the global level. However, centralization of antitrust control would involve only one organization taking action against a company distorting competition while in the current system, each country can file a complaint, creating very long and costly law suits. The Microsoft litigation is a very good example of this: both in the USA and Europe, lawsuits dragged on for more than fifteen years.  However, they are probably against such a project also because this would lead to a very effective international antitrust cooperation, making enforcement more effective and this is clearly not in the companies’ interests [21].

Since that failure to include antitrust rules in the WTO, there has been no formal multilateral competition regime at the global level. However, several international organizations are currently working on the question and have put forward a number of recommendations.

B. The multiplication of Non-Binding Recommendations

         There are three main international organizations that deal with antitrust matters today and they do so by creating what is known as “soft law”. It basically means that they establish quasi-legal instruments that do not have any binding effect and most of the time take the form of recommendations.

The first international organization is the International Competition Network (ICN). As it explains on its web-site, the ICN’s purpose is “to advocate the adoption of superior standards and procedures in competition policy around the world, formulate proposals for procedural and substantive convergence, and seek to facilitate effective international cooperation to the benefit of member agencies, consumers and economies worldwide”[22]. One way of achieving that aim is by promulgating recommended practices. The body regularly publishes reports and guidance papers in order to influence its members, especially regarding mergers. Indeed, since 2004, the ICN had published the ICN Recommended Practices for Merger Notification and Review Procedures, the ICN Merger Working Group Model Confidentiality Waiver, the ICN Guiding Principles for Merger Notification and Review and the ICN Framework for Merger Review Cooperation. It seems that these recommendations have worked pretty well. The ICN Members have mostly complied, especially regarding the ICN Recommended Practices for Merger Notification and Review Procedures which has been ranked as the most useful ICN work in a recent study [23]. However, it should be noted that the ICN only has 57 members. This diminishes the scope of its work, peculiarly since  two major economic actors — China and Russia — are not members. As we will see later in this paper, this institution also plays an important role in the cooperation between enforcement agencies.

The second most important international organization that plays a role in competition policy is the Organization for Economic Co-operation and Development (OECD). Indeed, it actively works on recommendations in order to harmonize competition policies worldwide but also in order to enhance international cooperation. One of the most important works of the Competition Division of the OECD is to diffuse norms by the process of “peer review”. A peer review is a diagnostic of the performance of a state’s antitrust system by other states. Its goal is to help the reviewed state improve its policy by adopting best practices and complying with established standards and principles [24]. Indeed, as Professor Sokol explains, “this process allows agencies to offer constructive criticism of policies to one another. Bad policies may be subject to shaming of an agency by its peers. Through this mechanism, peer reviews can help create compliance with best practices”[25].

The third international antitrust institution is the United Nations Conference on Trade and Development. It work is very similar to that of the OECD; it organizes conferences, reviews, reports and technical assistance missions. However, its impact is more limited since it focuses mainly on Latin America with the Competition Policies for Latin America Body (COMPAL).

By definition, soft law does not have any binding effect and this is the main problem with the work of these three bodies. Nevertheless, this does not mean that their work is useless. Indeed, they clearly create a model that countries can choose to follow or not and they also reflect the latest trends in antitrust, making it easier for new competition systems to develop their policies.

3. The Development of Effective International Cooperation

            Even though business activities are becoming more and more global, antitrust enforcement remains generally national. However, as a response to the development of international antitrust violations, national antitrust authorities are stepping up their efforts to coordinate international prosecutions. Merger control in the USA is a great illustration of that increasing will and need for cooperation. When the FTC published its 1992 Horizontal Merger Guidelines, the issue of how a merger should deal with jurisdictions outside the USA was not at all included [26]. However, it is very interesting to note the evolution with its 2010 Guidelines, which emphasize the international aspect of mergers. It is significant in this context that representatives of four non-US agencies traveled to Washington to serve as experts to advise the workshops involved in drawing up the guidelines [27].

Today, it is clear that antitrust agencies recognize cooperation as a vital tool in ensuring effective enforcement. As noted by Professor Fox, international cooperation has strong advantages: it increases the understanding of the competitive process and the effectiveness and efficiency of global enforcement, all of which is to the benefit of consumers [28].

The Google/Motorola merger is a recent example of successful international cooperation, especially between the USA and the EU [29]. In this transaction, the Antitrust Division cooperated closely with the Antitrust Division, and both agencies announced decisions on the same day [30].They decided no to challenge the acquisitions but both noted the possibility of a challenge in the future exercise of the ownership rights [31]. As noted by the Antitrust Division’s Director of Civil Enforcement, they also discussed the acquisition with the National Competition Authorities of Australia, Canada, Israel and Korea. The E-Book case is a another good illustration of this cooperation. In this case, Apple was found guilty of price-fixing along with major e-book publishers [32]. The DOJ worked closely with the European Commission on this investigation [33]. The Acting Assistant Attorney General at the time of filing, Sharis A. Pozen, said, “This investigation is a shining example of how far we have come in our cooperation efforts”[34].

The best illustration of that growing international cooperation has been the proliferation of bilateral agreements. The US-EU Cooperation Agreement was one of the most advanced bilateral agreement regarding antitrust [35]. Indeed, on 23 September 1991, the Government of the United States and the European Commission signed a bilateral agreement “to promote cooperation and coordination and lessen the possibility or impact of differences between the Parties in the application of their competition laws”[36].The agreement contains many provisions that are aimed to encourage cooperation. For example, Articles II and III require each party to notify the other when its competition authorities are engaged in enforcement activities that may affect important interests of the other, and provides for meetings between the two competition authorities.

The ICN has played and still plays a central role in the development of this international cooperation, mainly by creating working groups the mission of which is to focus on cooperation. For example, the ICN cartels working group, led by the DG Competition of the European Commission carried out a project on cooperation between competition agencies in cartel investigations in 2007. The idea was to make a study of the current state of cooperation between enforcement agencies in order to explore the potential issues and problems and propose possible ways to improve cooperation [37]. The working group analyzed five different areas for cooperation (waivers, provisions in national law, non-competition-specific agreements and instruments, competition-specific agreements between jurisdictions and regional cooperation instruments) and concluded that the main problem was “the complex patchwork of different types of cooperation instruments which is not conducive to efficiency or rapidity.” It proposed several ideas in order to enhance international cooperation like the fact that agencies could make a clear statement on what kind of information other than evidence they could usefully exchange with other agencies during an investigation without the need for a bilateral agreement [38]. Working groups like this one were created for issues regarding mergers, unilateral conduct, agency effectiveness, antitrust enforcement in regulated sectors etc.

More recently, the ICN has been endeavoring to play an even bigger role in international enforcement.  In June 2011, it decided to consider a potential project for the ICN to “assess member agencies’ needs with respect to international cooperation and identify appropriate work to be carried out by the ICN to address those needs”[39].  It should also be noted that the OECD also plays a role – though a less significant one – in the promotion of antitrust cooperation. Indeed, in 1967 it adopted a recommendation that its member countries cooperate with one another in the enforcement of their antitrust laws. As Professor Parisi notes, it provides that member countries notify other members when the latter’s important interests are affected by an investigation or enforcement action; that they share information to permit the member whose interests are affected to consult with the proceeding member; that they coordinate parallel investigations where appropriate and assist one another in locating and obtaining information located in each other’s territory; and finally that they consider addressing anticompetitive conduct affecting members’ important interests outside their territory by requesting the authorities in the country where the conduct occurs to take action [40].

While it’s true that the ICN has played an important role in the promotion of international cooperation and is mainly responsible for the development of such cooperation, this action also serves to highlight the failure to date of plans to create an official international regulatory authority. Indeed, the ICN does not have any real power and does not act as an enforcement agency. Moreover, the fact that China and Russia are not members gives the institution less influence. Finally, while there are now antitrust agencies all over the world, only a small number of them participate actively in international enforcement cooperation. This is why some legal commentators have argued in favor of the creation of a international competition agency [41]. Others, like Professor Zimmer, have suggested rather that it should be the authority closest to the case that should work on it independently [42]. It could be argued that this latter option raises two problems. First, the “closest agency” would probably be tempted to protect its own customers and not all the customers injured by the anticompetitive practice. Second, it is almost impossible to identify an objective criterion that could determine the best-placed authority to deal with a given case. However, it seems unlikely that any international enforcement agency will see the light of day in the near future.

4. Towards International Harmonization

            As Professor Hylton pointed out, since China modeled its antitrust regime on that of the EU in 2010, there are essentially two antitrust regime types worldwide: that of the USA and that of the EU [43]. The fact that almost every country has based its antitrust regime on one of these two systems clearly makes enforcement more effective thanks to the existence of similar standards and rules of enforcement. But what are the differences between the two regimes? We will see in this section another reason why there is talk of international harmonization: the converging paths of the two systems.

A. The Differences Between the Two Regimes

            First, the EU antitrust public enforcement is known to be much stricter than the US one. This is especially visible with regard to fines. In the USA, under the Sherman Act, the fixed maximum penalty is $100m. However, the law permits penalties which are equal to twice the loss imposed by the violator on consumers [44]. On the other hand, in the EU there is no threshold. The Microsoft litigation is a very good illustration of this first difference. While the US case ended in a settlement that has been criticized as too lenient, the EU case ended in a decision imposing harsh remedial measures (injunctions etc.) and a record fine of €497m (over €800m if we take into account the later additional fines). Moreover, this is a very interesting illustration of the paradox of the two systems: they started in a similar fashion, both applying similar standards in order to challenge Microsoft’s domination over the market of Intel-compatible computers, but ended very differently [45].

Given the similarity of US and EU antitrust law, why do they enforce their laws so differently? Many legal commentators assert that antitrust law in the USA focuses on protecting the competitive process while the EU emphasizes protecting consumers through competition [46].However, this argument is not very persuasive since both systems have given consumer welfare as the key priority [47].Another explanation could be that the power of political lobbies has contributed to a more lenient environment in the USA, while the EU has faced mounting pressure to weaken Microsoft’s market power [48].

Second, the EU has a very different approach concerning private enforcement. The famous Courage and Manfredi cases set out the general principles and conditions of individual liability for damages [49]. In Courage, the CJEC established the principle that any individual has the right to claim for losses caused by an abuse of a dominant position. Consequently, national law has to provide all the means necessary for the effective private enforcement of Article 102 TFEU. In Manfredi, the European Court established the principle of full compensation for violations of articles 101 and 102 TFEU. However, the Court left considerable discretion to national courts to apply procedural rules with regard to their domestic systems, as well as the substantive rules of recovery in torts, delict, etc [50].  In the USA, any person “injured in his business or property by reason of anything forbidden in the antitrust laws” may recover treble damages, costs and attorneys’ fees [51]. According to the Hawaii v. Standard Oil Co. case, a state is considered as a “person” because of its capacity to consume goods and services and therefore may sue to recover treble its damages [52]. Further, in 1976 the Congress also empowered State Attorneys General to bring parens patrie lawsuits on behalf of state citizens to recover treble damages [53]. Another important feature of the US private enforcement is the possibility to put forward class actions which can serve as an important deterrent for dominant firms.

As Professor Prieto has pointed out, private enforcement is limited in Europe because the European Commission does not want to copy the US system where private enforcement represents 90 per cent of cases. Indeed, its preferred route is to enhance the credibility of public enforcement and deter anticompetitive behaviors by encouraging private actions for damages resulting from public enforcement investigations and decisions [54].

B. Converging Paths?

(i) Evolution of the US public enforcement

It is probably because of the significant level of cooperation between the two enforcement systems that US agencies have moved towards a harsher enforcement regime, especially under the Obama administration. The Intel litigation is a very good example of how US public enforcement is moving closer to the European system. In May 2009, the European Commission imposed one of the largest antitrust fines in its  history for Intel’s abuse of a dominant position. It explained that the discounts offered by Intel were so large that AMD had not been able to compete, and therefore, it argued, consumers would face higher prices sometime in the future [55]. The Commission’s decision was vigorously criticized in the USA, mainly because the former had decided to attack one of the most successful US firms without actual evidence that its conduct had harmed (or would harm) consumers.

Until 2009, antitrust enforcement agencies did not choose to attack the most successful firms without unequivocal evidence of anticompetitive and exclusionary conduct. However, the nomination of Christine Varney as Assistant Attorney General for Antitrust heralded a change. She announced that the DOJ would “begin scrutinizing big business in a way that it hasn’t been scrutinized for a long time”[56]. She also made clear that in the new-look DOJ, the existence of possible harm would be enough to warrant the investigation of a complaint. The FTC, without being as explicit, launched at that time several investigations against big firms, including Intel.  According to Michael Reynolds, the explanation for this change in public enforcement policy is simple – the Economic crisis: “In the current economic environment, the competition authorities have an interest in seeking to ensure markets remain open and competitive”[57].

In its complaint against Intel, the FTC alleged that, through the use of loyalty discounts offered to microprocessor purchasers, Intel unlawfully excluded rivals and harmed consumers in the microprocessor and graphics processor markets [58]. We see here how the FTC’s complaint is close to that of the EU Commission; in both cases the enforcement bodies filed a complaint based on the principle of speculative future consumer harm. As explained by Professor Wright, for the FTC, the loyalty discounts acted as de facto exclusive dealing arrangements, excluding “locked-in” OEMs from purchasing their requirements from AMD or other manufacturers. Therefore, Intel’s conduct violated Section 2 of the Sherman Act [59].

The main problem for US agencies is that the courts do not seem to share the same point of view regarding enforcement. Indeed, in numerous decisions, the US courts have safeguarded loyalty discounts from liability under Section 2 of the Sherman Act and also have always required some evidence of consumer harm. In 2009, Professor Wright explained that “in the end, either the Antitrust Division will fail, or the courts will bend in a way that unsettles the law”.

(ii) Evolution of the EU private enforcement

A 2004 study ordered by the European Commission found private enforcement of antitrust law in the EU to be in a state of “total underdevelopment” [60]. As a result, the Commission is constantly trying to find measures to facilitate private litigation. Europe is beginning to realize that private enforcement can enhance consumer welfare when it is well regulated. Indeed, the main advantage of private enforcement is that it complements the “necessarily limited governmental resources that can be devoted to deterring and remedying the effects of anticompetitive conduct”[61]. However, the main danger with encouraging private enforcement is a risk of deterring procompetitive conduct to the detriment of consumers simply because it would become costly for companies to be aggressively competitive.

In June 2013, the European Parliament and Council proposed together a draft directive regulating actions for damages for infringements of competition law [62]. This directive contains some very interesting features with regard to facilitating private actions. For example, it establishes a presumption of harm resulting from a cartel because of “the secret nature of a cartel, which increases the said information asymmetry and makes it more difficult for the injured party to obtain the necessary evidence to prove the harm” (Chapter V: Article 16). It also underlines the need to take into consideration loss of profits in addition to actual loss (Chapter IV: Articles12-15).

Second, in its communication on quantifying harm in actions for damages based on breaches of Article 101 or 102 of TFEU, the European Commission presented a very interesting and precise method for quantifying harm, drawing on econometric models respected in the scientific community for their reliability [63]. These formula, intended for national courts and plaintiffs, are not legally binding, but play a vital pedagogical role in a very technical field.

5. Conclusion

            As we have seen in this paper, international antitrust is a very sensitive and complex matter, especially because all states do not share the same vision of how it should be regulated. However, international regulation is clearly needed as antitrust issues are becoming more and more globalized. With the failure of effective international regulation, other forms of legal instruments have emerged in order to face issues raised by antitrust on the global stage. This is why cooperation had increased and the most advanced antitrust systems have now developed strong networks with other agencies. The current harmonization in competition policies has clearly enhanced this cooperation.

But while it is true that there has been a great effort between agencies to cooperate with one another, there remains room for progress in this area, particularly given the fact that what is missing is any real international organization able to manage the whole system. In my opinion, there are two main ways in which this problem may be addressed. The first would be to broaden the mandate of the ICN, as was suggested by the body in 2012. Indeed, the major issue with the ICN is that it has no power to issue rules with a binding effect and that should be corrected. For example, if a member does not respect its practices with regard to merger notification and review, the ICN could be given the power to sanction that state. Moreover, a dispute resolution system, similar to that in place at the WTO — which has proven very successful — should be built in order to have a fair and effective procedure regarding sanctions.

The second way of solving the international antitrust problem would be by starting afresh and creating a new institution. This second proposition has two advantages compared with the first. First, it would make it easier to negotiate with states that are not members of the ICN — especially China and Russia which have important antitrust systems and currently play a minimal role in international regulation. Indeed, if the negotiations were to concern the creation of new body and not focus solely on the ICN, this would have the advantage of involving countries that are not part of it. The most useful way would probably to link in some way the new institution to the UN. Second, the idea of creating a new international organization would have the advantage of building something from scratch, thereby forgetting the failures of the ICN. Such an approach has a proven track record, as shown by the transition from the GATT to the WTO in 1995 or from the League of Nations to the UN in 1945.