SLIDE 5
- n the Commission’s side, the effectiveness
- f the guidance route in terms of improv-
ing predictability will depend on how often the Commission is prepared to exercise its considerable discretion and how broad an interpretation it applies to what amounts to a novel issue. As to the substantive guidelines, it is really too early to say— their effectiveness will clearly depend on how closely and consistently they are adhered to in practice. HÄRING: Only time will tell. For the mean- time, I would not feel sufficiently comfort- able to rely on the mentioned sources of predictability in one of our more complex
- matters. Such complex matters are often
characterised by the fact that one can find about as many good arguments for legality as for illegality. For such matters, and in particular in cases where substantial invest- ment decisions are based upon the antitrust assessment, the users of the system should be entitled to request guidance by the Com- mission, even if this is only in extraordinary cases and subject to some reasonably restric- tive conditions. LEVY: Although the Guidelines should help increase legal certainty, they clearly cannot deal with every situation. Antitrust cases are highly fact intensive, and facts are infinitely
- variable. Whether certainty and predictabil-
ity are enhanced by the new regime will depend largely on the application of Articles 81 and 82 by national agencies and courts, rather than the legislative framework implemented by the Commission MACCHI DI CELLERE: Complex matters, by definition, will require a detailed analysis and a case-by-case approach. Such an exer- cise will prove that existing guidelines will not be sufficient to clarify such matters and be a sufficient support to render authorita- tive answers. That is why I would have hoped that the Commission was willing to create an advisory body so that it would be possible to have discussions with its officials and/or obtain guidance letters, not solely on those limited cases in which novel issues arise, but also on those complex matters that, considered in their single components, do not present unusual questions. OGILVIE SMALS: The Commission has made some allowance for complex matters by accepting the need in limited cases for guidance letters to be provided. This should be of some assistance but it remains to be seen how willing the Commission will be to provide such letters in practice. Unless they are reasonably proactive on this, particu- larly in the early years of the new system, then there could be a real chilling effect on business decisions. GCR: Do you agree that compliance is being simplified because 26 laws are being
EVE OF MODERNISATION
WWW.GLOBALCOMPETITIONREVIEW.COM
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- thing. This is because Regulation 1/2003
fails to install a ‘one-stop shop’ principle that would provide us, the users, with any legal certainty—or ‘predictability’, if you prefer—regarding which authority is com- petent to handle a case. And if you don’t know that then you don’t really know what the eventual decision will look like, I would argue. I think that the provisions on coopera- tion between the Commission and the com- petition authorities of the Member States, as set out in Article 11 of Regulation 1/2003), are not persuasive. This system does not exclude the possibility that more than one competition authority may be competent to deal with an individual case. LEVY: As to Article 81, compliance should be simplified. As to Article 82, however, there continues to be uncertainty and ambi- guity as to the law. It is highly desirable that the Commission clarify the situation in the form of a notice or guidelines to avoid inconsistent or wrong decisions being taken at the national level. Although there will be some simplifica- tion, which is welcome, the 26 national laws will still apply if there is no effect on trade between Member States. MACCHI DI CELLERE: Not really in agree-
- ment. Firstly, it could be pointed out that
mainly large multinationals will effectively benefit from the alleged elimination of the burden of verifying their agreements against 26 standards; secondly, and most impor- tantly, it is naïve believing that from now
- n lawyers will not consult any more with
their correspondents in the various states where agreement reaches its effects to get advice on national competition law: this will continue to be the case since EU law may well be applied by national agencies and local courts in a varied manner depend- ing on procedural laws and the given Mem- ber State involved. OGILVIE SMALS: This is an oversimplifica- tion of the possible benefits given that the 26 national laws will remain on the respec- tive statute books and there are significant differences between them and also with EU
- rules. Incidentally, the Commission should
take greater responsibility for seeking con- vergence of these differing laws. The issue here is when EU jurisdiction will override national laws and that turns on the appli- cation of the ‘effect on trade’ concept. In its Modernisation Package, the Commission has missed an opportunity to clarify the application of this concept with more ‘bright line’ rules. RILEY: I think Paulis is underplaying this. For the client on the ground whether it’s a different interpretation of the same law, or a different law, applied differently to EC replaced with one? BIONTINO: [He] is right about direct enforcement of Articles 81 and 82, but of course a majority of cases will still fall under national rules, which to date, have not been harmonised at all. Indeed, judges across Europe have, in many cases, little experience
- f applying EU competition law and there
could well be great divergence in its appli- cation whereas before clients could expect the interpretation by the Commission and the ECJ that they were ‘used to’. BROOMHALL: For agreements affecting trade between Member States, the obliga- tion to apply Article 81 is clearly helpful; however, the issue is more one of the poten- tially divergent interpretations which may be applied to Article 81 by the various national courts and competition authorities. Although many of the modernisation reforms are designed to minimise this risk, for this to work in practice it will require a considerable amount of discipline at both an EC and national level. Equally, for Article 82 it will remain important to verify the rel- evant national legislation, given that mod- ernisation does not prevent stricter national abuse of dominance rules. DEL REY: I think it was already the case before the new Regulation that no agree- ment could be legal if it was against Euro- pean competition law. Still, if a national authority starts procedures against an agree- ment because it goes against national law, the company can always defend its legality according to EU law, but that was already like that. HÄRING: I agree that compliance will be
- simplified. It is in fact a good thing that
users will only need to apply EU law as soon as an agreement affects trade between Mem- ber States. Although this is, of course, often very hard to decide. That fact alone will thwart the harmonisation effort to a con- siderable extent. In my view, the harmonisation as set forth in Article 3 of Regulation 1/2003 does not go far enough. I would have preferred Article 3 to be worded as it was in the orig- inal draft regulation, where it provided for an exclusive application of EU law to agree- ments that may affect trade between Mem- ber States. Moreover, while Regulation 1/2003 may ensure that the one law pre- vails, and the 26 laws do not prohibit agree- ments deemed valid and enforceable under EU law, the same, unfortunately, does not hold for unilateral conduct—Article 82 of the EC Treaty. I would agree with the comment that your interviewer made in the follow up, where they suggest 26 different laws are in fact giving way to 26 different interpreta- tions of one law, which might be the same
