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Interview with Bruno Lasserre: "Commitment decisions: Tool of choice or poison for antitrust enforcement?"

Concurrences Review

Monday, June 15, 2015 from 8:30 AM to 7:00 PM (CEST)

Interview with Bruno Lasserre: "Commitment decisions:...

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Event Details

New Frontiers of Antitrust 2015

 

 

Commitment decisions:

Tool of choice or poison for antitrust enforcement?

 

Interview with Bruno Lasserre

The New Frontiers of antitrust conference will be held on June 15, 2015 at Ministry of Economics, Paris. David Spector — Economist, MAPP — has interviewed Bruno Lasserre — Chairman, Autorité de la concurrence — who will participate in the panel discussion: "Commitment decisions: Tool of choice or poison for antitrust enforcement?". Other panel speakers include: Jed Saul Rakoff, Judge, Southern District of New york, Wouter Wils, Hearing officer, UE Commission and Jean-François Bellis, Lawyer, Van Bael & Bellis.

 

Read the full interview below and register for the conference here.


David Spector:  Cases ending with a commitment procedure seem to often give rise to decisions that are shorter, less detailed than in normal procedures. Does this imply that their influence as precedents shaping future enforcement should be less than the influence of decisions following normal procedures?

Bruno Lasserre:  Within the diversified toolkit from which authorities draw to tailor their decision to the facts and the competition issues at hand, commitments play an important role to swiftly restore competition through solutions designed within the market, i.e., brought forward by market players and adjusted and perfected with the help of stakeholders through a market test.

This reflects the fact that our mandate, as enforcers, is not solely about detecting and punishing: it goes beyond to pursue the effective restoration of a competitive level-playing field. Commitment procedures therefore reflect a more pragmatic stance geared towards the effectiveness of the outcome rather than the condemnation of a particular behavior.

Does this mean that commitment decisions should be viewed as case-specific and inapt to contribute to set future enforcement policy?  I do not think so, for at least two reasons, one legal and one empirical.

First, under the French system, numerous checks and balances exist which require that we include an extensive legal and factual reasoning in our commitment decision, following an open debate and then potentially an intense scrutiny by the review judge, bearing in mind that standing to appeal is loosely interpreted. Together with the compulsory market testing of proposed commitments, this ensures that our decisions are robust, reasoned, clear and transparent for the concerned undertaking and the wider public as well.

Second, past experience shows that our commitment decisions have in fact had an important role in shaping enforcement; sometimes to the point of being enshrined in guidelines. One example is our practice, in 2006-2007, of accepting commitments by manufacturers which allowed for the healthy development of online sales while admitting that specific conditions, such as the obligation to hold at least one brick-and-mortar outlet, could be imposed. This solution was eventually reflected in the Commission’s 2010 vertical restraint guidelines.


David Spector
:
 
 Some people fear (and some hope) that the development of commitment procedures is heralding a shift away from an effect-based approach towards a more formal, object-based approach, with less economic analysis - in particular for abuse of dominance cases, but also for some practices by non-dominant firms that fall short of clear, hard core cartels. Is this fear / this hope justified?

Bruno Lasserre: We have first to keep in mind that if commitment decisions have developed  since their introduction in French law in 2004, they still represent less than 20% of all decisions adopted by the Autorité in infringement proceedings. This figure allows us to conclude that the development of this tool has not distracted us from carrying cases forward and reaching decisions on the merits.

As regards more precisely the substance of the commitment decision adopted by the Autorité, it is in the nature of so-called preliminary concerns not to reach definitive findings on a given behaviour. This reflects the fact that the commitment route must allow for a speedy resolution and thereby free up resources for the authority. This speeding up is also beneficial to the undertaking concerned, together with the limited status of a commitment decision in the context of “follow on” damage claims. If the investigation is thus inherently more limited, the legal references remain the same as in a full investigation on the merits. In particular, efficiency arguments are being addressed in commitment proceedings, e.g., the mitigation of free-riding risks, as in the vertical restraint decisions I mentioned previously or even in our ongoing investigation into online travel agencies.

David Spector:  According to one view, cases involving complex theories of harm warrant a full process, with input from economists, and possibly review by courts if there is an appeal, so as to ensure that all facets of the case are taken into account properly, and to clarify future enforcement. Do you agree with this view, or do you think that commitment procedures are well-suited to such cases?

Bruno Lasserre:
I would disagree. The theory of harm may indeed be sometimes more complex to establish, for instance in new or fast-moving markets in the digital industry. However, precisely in such cases, solutions brought forward by market players and perfected after a market test can be appropriate to remedy the harm without stifling the development of these markets. In these markets, time is of the essence and moving swiftly is paramount to avoid permanent market foreclosure. At the same time, commitments allow for a careful fine-tuning rather than a blunt “yes / no” approach: the risk of overshooting and diminishing incentives to innovate is therefore carefully kept in check.

 

For the complete agenda of the conference and the list of the keynote speakers, visit:  https://newfrontiersofantitrust2015.eventbrite.com

Have questions about Interview with Bruno Lasserre: "Commitment decisions: Tool of choice or poison for antitrust enforcement?"? Contact Concurrences Review

When & Where


Ministry of Economics
139 rue de Bercy, Paris | M° Bercy
75012 Paris
France

Monday, June 15, 2015 from 8:30 AM to 7:00 PM (CEST)


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Organizer

Concurrences Review

The Paris “New Frontiers of Antitrust” conference is a unique occasion to network with some of today’s most influential global leaders in competition law. This conference, held each year in Paris since 2009, now ranks first among the European antitrust independent events in terms of venue, press reports and audience. The 2019 Steering Committee, headed by Frédéric Jenny, includes Prof. Laurence Idot, Prof. Nicolas Petit and Nicolas Charbit.

All tariffs include breakfast, coffee, lunch and cocktail reception. Conference credited for the Paris Bar continuing legal education. Governmental agencies and academics registrations must be sent with valid proof. Languages: English - French (translation). Limited places available due to the conference venue. Payment must be received prior to the conference. There will be no refund after 29 April 2019. Cancellations must be received in writing; cancellations received in writing up to 2 weeks before the conference will receive a refund less 15 %. Substitute delegates are welcome at any time. Photos will be taken at the event; attendees agree for the organizer to use these photos, unless otherwise required in writing. This event is organised by Concurrences Review and is co-sponsored by legal, economic and media partners.

The list of attendees will be communicated to the speakers.

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