IBA-ICC Annual Pre-ICN Forum 2023: The Antitrust Trifecta – enforcers, the courts and the private sector

Andrew Ward
Gomez-Acebo & Pombo, Madrid; Publications Officer, IBA Antitrust Section

In October 2023, the IBA Antitrust Section and our colleagues from the International Chamber of Commerce (ICC) Global Competition Commission put together our now traditional conference raiser for the International Competition Network (ICN) Annual Conference – the Pre-ICN Forum – in the Torre Glories, a stone’s throw from the headquarters of Spain’s Comisión Nacional de los Mercados y la Competencia (CNMC), hosts of the ICN Annual Conference, and with spectacular views over Barcelona’s iconic Sagrada Familia.

The programme was titled ‘The Antitrust Trifecta: enforcers, the courts and the private sector’ and featured panels focusing on each of those dimensions of antitrust enforcement.

We kicked off with a panel exploring the role of the private sector in competition enforcement in an innovative format of three short interviews moderated by Marcin Trepka, Co-Chair of the ICC Task Force on ICN.

First session

First, was an interview by Anne Riley, also Co-Chair of the ICC Task Force on ICN, of guest speaker Alvaro Ramos, Vice President and Legal and Chief Compliance Officer for Qualcomm, discussing compliance programmes and the role of internal compliance counsel generally. Anne and Alvaro grappled with how to convince businesses that antitrust is their friend and not their enemy, how businesses can be seen as advisors, not policemen, how to ensure that you, as an in-house counsel can get those key phone calls, and the critical importance of being able to say no. It was a fascinating discussion, taking in an understanding of internal hierarchy and the need for continuous and highly targeted training, and ending with an appeal to authorities to do their part to help in-house counsel by giving more credit for compliance efforts.

Next, we turned to the increasing burdens of non-target requests for information (RFIs) and possible practical solutions in an interview by Dina Kallay, Co-Chair of the ICC Task Force on ICN, of John Taladay, Chair of the ICC Task Force on non-target RFIs. John highlighted the huge uptick in non-party RFIs, the resulting burden on businesses and the amount of feedback received by the ICC Task Force. He then took us through the findings and recommendations in the report: a recognition that businesses do need to play their part and respond in good faith but highlighting the ‘communications gap’ and the difficulty of getting business people to focus on RFI responses, the suggestion of orientation calls to avoid wrongly directed RFIs from regulators who do not fully understand the business and, in particular, the need for flexibility from regulators as to the format and the structure in which data can be provided (since businesses simply may not have data in the format requested).

A fascinating first session wrapped up with a discussion of the relationship between state aid, merger control and the European Commission’s newly introduced Foreign Subsidies Regulation between Eduardo Maia Cadete, Vice Chair of the ICC State Aid Task Force, and Inge Bernaerts, Director for Strategy and Policy for DG Comp. Inge set out the enforcement gap that the financial status report was intended to address: while state aid rules limit aid granted by EU member states and trade instruments can help combat subsidies outside the EU, there was no tool aimed at non-EU member state subsidies within the EU. This was all the more important given the number of simultaneous challenges, including geopolitical pressures, rises in the cost of living and inequality and the need to fight for consumer welfare in that context. In substance, although concerns were raised about the subjectivity of application and the lack of guidance, Inge insisted that the aim, just as in state aid control, is to ensure that subsidies are not crowding out private investment or otherwise distorting competitive outcomes. And finally on procedure, while there was a recognition that the rules could potentially require a large amount of data, Inge insisted that the Commission, already engaged in prenotification discussions, was committed to being reasonable and pragmatic and noted that whenever a new tool was added to the regulatory toolbox it was in the common interest to make it work.

Second session

After a short break, the second session took the form of a panel discussion on the role of the courts in the execution of competition law, moderated by the author and for which we were extremely fortunate to count on the participation of Miguel Sampol, Judge of the EU General Court, Mercedes Pedraz Calvo, Judge at Spain’s Audiencia Nacional and Eleanor Fox, Walter J Derenberg Professor of Trade Regulation Emerita at the New York University School of Law. It was a rare opportunity to hear directly from judges and to discuss their view of their role in competition enforcement.

Professor Fox kicked off the debate by answering the central question of whether the courts should be considered allies of the competition authorities: robustly no; their role is not to be allies of the agencies but to apply the law. Having said that, in practice, there were concerns about the role of the courts in the US, which is increasingly becoming one of the most conservative jurisdictions in terms of the judicial role. While courts, including the US Supreme Court, increasingly attempted to limit agency discretion where it has not been expressly granted, the Biden administration, in particular, had sought to expand and further enforcement through executive action.

Judge Pedraz opened her remarks by pointing out that the courts and the authorities were on the same side in one sense – that both sought to uphold the law – but that at times, there was a difference in attitude in relation to review. While judges and courts were comfortable with their decisions being reviewed and criticised in later instances and cases, there was sometimes the impression that agencies were not as accepting of that same criticism. This is especially important because the role of judges is to uphold the fairness of the system and the rule of law by ensuring not only that procedures are properly followed and rights respected, but also that standards of proof and of reasoning are properly met, something that only became more difficult as agencies developed more sophisticated theories of harm (even before innovations and technology such as algorithms and artificial intelligence (AI) came into play).

Judge Sampol agreed with both points of view and emphasised the increasingly difficult role for the courts. While the EU General Court had a clearly unlimited jurisdiction it was also accustomed to and accepting of the later review of the European Court of Justice, despite the increasing pressures on its resources in ever more complex cases. In particular, he noted the importance of training for judges and for constant adaptation – highlighting the recently adopted strategy in relation to AI as an example – and also the fact that the relatively recent introduction of the Court meant that important procedural questions were still open – citing the recent Printeos case law^[1] and the ongoing Deutsche Telekom appeal^[2] as examples.

There followed an extremely lively debate between all three judges and participants from the audience with a lot of consensus but also an interesting disagreement. While Professor Fox believed that the lack of dissenting opinions in the EU courts was a missed opportunity, Judges Pedraz and Sampol strongly dissented, with a clear preference for legal certainty and highlighting, in the case of the EU courts, the political challenge – and pressure on judges – that might result from judges being free to express opposing views.

Final session

Last but by no means least, the final session took the form of a fireside chat between Samantha Mobley, Co-Chair of the IBA Antitrust Section, and Cani Fernandez, President of the CNMC and host of the ICN Annual Conference, Andreas Mundt, President of the Bundeskartellamt and Chair of the ICN, and Gina Cass-Gottlieb, Chairperson of the Australian Competition and Consumer Association.

It was another wide ranging debate hitting a number of key topics including cooperation between enforcers and courts, enhanced enforcement tools, the rise of market enquiries and studies, the ever greater scrutiny of digital markets and services and the new, increased focus on sustainability. It was also a great opportunity for the enforcers to respond to the comments from earlier in the afternoon, with all three regulators taking time to address the interplay with the courts in their jurisdictions. Cani Fernandez highlighted the CNMC’s guidance on credit for compliance in the context of public contracting bans and Andreas Mundt took up the gauntlet in relation to third-party RFIs.

The judges panel in particular provoked a thoughtful response. Gina Cass Gottlieb seemed to sympathise with the challenges faced by the courts and focused on the need for regulators to learn lessons from judicial reviews of their cases. Similarly, Cani Fernandez noted that almost all CNMC decisions were appealed and that in two-thirds of cases they were upheld on substance (highlighting the distortion caused by changes to the judicial appreciation of fines calculations), but that in any event, the CNMC were commissioning a detailed study by leading academics aimed at drawing key lessons from that judicial practice. Finally, Andreas Mundt also highlighted the excellence of the German courts and the role of Germany’s courts specialising in competition cases, but confessed to doubts about judicial procedure and its limitations in the competition context: noting that a system where cases could be held up for years in the courts was not compatible with effective enforcement in the fast moving technology sector. The panellists were also unanimous in the need for further training and dialogue with judges at all levels: and highlighted the value of events such as the Pre-ICN Forum, and the participation of judges as a part of that dialogue.

The enforcers then turned to proactive efforts to investigate key markets and in particular the tech sector, with Gina Cass-Gottlieb highlighting the investments and improvements made to equip the Australian Competition and Consumer Commission (ACCC) to investigate the tech sector, where Cani Fernandez also highlighted recent enforcement by the CNMC in the Amazon/Apple case and others and the CNMC’s active role in merger control in tech cases – due to the famous market share threshold, and indeed in the extended use of Article 22 referrals. Andreas Mundt also agreed with the increased use of Article 22 but questioned whether there should be guidance on its use, while Gina Cass Gottlieb highlighted the ACCC’s ‘call-in’ power, before the conversation turned to new enforcement tools and market studies in particular. Again, there was total agreement at the value of market studies and proactive investigations in provoking improvements in market practice and identifying areas for enforcement.

And all too soon the ‘fire’ was extinguished, the ‘chat’ was over and the ‘fireside’ was deserted as the regulators hurried off the inauguration at the CNMC headquarters. But while the sessions were over, the debates bubbled on over wine and tapas for those able to take part and there was no doubt that the pre-ICN Forum was much more than just an appetiser: a thoroughly interesting afternoon on its own merits. Congratulations to all involved and thanks again to our colleagues at the ICC and all those who made it possible.

Notes