On September 13-14 2013, Florence was the venue of the 17th Annual Competition Conference organized by the International Bar Association (IBA). More than 180 lawyers and economists attended, from 41 countries around the globe. This year’s focus was on ways in which competition authorities can protect and promote innovation, legal evaluation of different pricing strategies, and developments in the areas of antitrust investigations and damages actions.
Interplay between antitrust and innovation. The highlight of the conference was the speech delivered by Mr. Joaquin Almunia, Vice-President of the European Commission and Commissioner in charge of Competition. Mr. Almunia emphasized that Europe has a solid basis for achieving economic growth through innovations but noted potential threats to the innovation process, coming from protectionist tendencies by certain policy makers and anti-competitive conduct by established businesses. In his presentation, Mr. Almunia addressed modes in which interplay of State aid rules, antitrust enforcement and merger control can foster innovation and lead to economic growth. The full text of the Commissioner’s speech is available here.
Proposal for an EU directive on antitrust damages. In June 2013, the European Commission adopted its Proposal for a Directive on Antitrust Damages Actions, aimed at removing barriers which currently stand between victims of antitrust infringements and effective compensation for the harm suffered. The proposal contains measures of far-reaching significance for private damages actions, including rules on access to evidence, limitation periods for bringing damages actions, joint and several liability of co-infringers, recovery in case of passing-on of overcharges and quantification of antitrust harm. The Commission’s proposal was presented by Mr. Eddy De Smijter from the Private Enforcement Unit of the Directorate General for Competition. Some of the solutions in the proposal, such as the scope of legal presumptions which shift burden of proof on infringers, were criticized by panelists as excessively burdensome.
Pricing strategies. The conference addressed new developments in the law of distribution practices, an evergreen antitrust topic. In this respect especially interesting was a discussion on most favored nation (MFN) clauses, whereby a supplier agrees to grant a customer the best sales conditions available to any other customer. The legal status of this clause entered the spotlight in July 2013, when both the European Commission and a U.S. district court issued decisions condemning arrangements containing such provisions. Another widely discussed topic were loyalty rebates, in light of the ruling of the European Court of Justice in Tomra and others v. Commission and the U.S. Federal Trade Commission’s settlement with Intel. Panelists coming from the economic sphere emphasized the need for a balanced approach to these practices, as they can have significant procompetitive effects. Finally, resale price maintenance also attracted attention, with some panelists criticizing the EU’s formalistic approach to the practice which, from an economic point of view, is not inherently harmful.
Annual interview. The central event of the second day of the conference was an interview with Professor Frederic Jenny, Chairman of the OECD Competition Law and Policy Committee. Holding a PhD in economics and having served as a Conseiller en Service Extraordinaire with the French Cour de Cassation, Professor Jenny was able to give a unique insight into how the application of economic theory can lead to better decision-making by courts. His appointment with the French highest court may perhaps serve as an example of how economists can improve the quality of judicial review in antitrust cases, especially taking into account the significance of economics in the competition law sphere.
