🚧 Support from Compliance Law for day-to-day management of Competition Law

So how can we still claim to understand this branch of the law, which is experienced in practice by everyone but which often appears in its learned form today so fragmented by so many sub-specialities, which leads us to think nothing of it, thus allowing others, for example, opinion leaders who know nothing about it technically, to evoke its rules, accusing one or other of being the cause of the ills from which we suffer (one speaking of "ultra-liberalism", another of the "tyranny of technocrats", the third of the "government of judges", the fourth of "dispossession by Brussels", etc.) in order to make political profits from it. ) for political or even electoral gain, without the specialists having anything more to say about it? 

Competition Law is becoming more and more like a regulatory mass, sometimes hard, sometimes soft, a mass that is constantly changing, rather in small fragments in the hard law when texts are repeatedly amended, rather in whole sections in the soft law when new guidelines are published, which makes the soft law much more violent than the hard law; a mass whose meaning varies from case to case, the term 'pragmatism' consoling us for that, a mass which would be so difficult to learn, understand and handle that we would have to give up trying to grasp it all.

To understand Competition Law, however, the solution might be to segment it so as the perspective should be not to become just a Competition Law specialist but a specialist (i.e. knowledgeable and skilled) in anti-competitive behaviour, in restrictive practices,in  state aid, in mergers, in unfair competition, in the various sectors (energy, transport, banking, agriculture, health, etc.) in which competition principles are superimposed on regulatory mechanisms, or the new areas in which Competition Law is struggling to find its place, such as the digital environment. ) in which competition principles are superimposed on regulation mechanisms, or new areas in which Competition Law is struggling to find its place, such as the digital environment.

What appears to be a solution would, however, be a renunciation, because the creation of all these small branches of law, even if they are then added together, does not give an understanding of what they have in common: Free Competition. What's more, it leads us to forget what breathes life into Competition Law as a whole: Freedom. The disappearance of this spirit, which is common to the French Civil Code, many Constitutions and the founding Treaties of Europe, and which is still present in the small letters of the various texts, is very damaging because in the regulatory technique, nothing resembles one competition regulation more than another. For example, Chinese competition regulations and Western competition regulations appear to be copies of each other, whereas Competition Law is the expression in Western legal principle of the freedom of individuals and not in Chinese regulations, which promote the prosperity of markets while imposing the primacy of the group over the freedom of individuals. 

So the global picture is essential in practice in Competition Law. 

This is why the immense knowledge of Professor Laurence Idot, who knows everything about Competition Law, is so valuable in this field, which must be embraced as a whole, and if we had to pay tribute to Laurence Idot for just one reason, it would be this: that she is a master of it. This means that the principles always come first. 

But few can follow her in this mastery, and it is undoubtedly regrettable to think that a branch of law can only be understood as a whole by its few masters.  

The fact that Competition Law is an everyday law makes it all the more regrettable and damaging to think that it cannot therefore be understood in its entirety.

Indeed, the individual is not obliged to be an investor or an entrepreneur but, as a social being, he or she is obliged to be a buyer, and if the first legal object of Competition Law is prices, drawn hither and thither by the theories of some and others to find out where the consumer is and the consumer's well-being 📎!footnote-2317, it is actually we who take out the money to acquire goods and services.

But if even those who work in this branch of law no longer seem to want to have an overall view of it, how can those who live with the mechanisms of competitive markets every day understand them? After all, you have to understand first before you can form an opinion and act accordingly.

The more Competition Law is perceived and presented just as a series of regulations, varying with each appointment of a new regulator, the less control we will have over it, because we no longer want it.

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So how can we still claim to understand this branch of Law, which is experienced in practice by everyone but which often appears in its learned form today so fragmented by so many sub-specialities, which leads us to think nothing of it, thus allowing others, for example, opinion leaders who know nothing about it technically, to evoke its rules, accusing one or other of being the cause of the ills from which we suffer (one speaking of "ultra-liberalism", another of the "tyranny of technocrats", the third of the "government of judges", the fourth of "dispossession by Brussels", etc.) in order to make political profits from it. ) for political or even electoral gain, without the specialists having anything more to say about it? 

Professor Laurence Idot's broad perspective enabled her to give a comprehensive overview of Competition Law and to make it easier to understand. At the same time as mastering the technicalities of Competition Law, she emphasised the decisive role it plays in 'competition policy' in the construction of the European Union.

It is true that Competition Law, which is made up of techniques, should not be confused with 'competition policy', which is a matter for the political authorities, as the term suggests. Politics would not be the business of lawyers, who would be in the wrong register and in the wrong order if they confused the two. Yet in 2018, Professor Laurence Idot, in a landmark article, painted a picture of 60 years of competition policy in the European Union 📎!footnote-2311, showing that Competition Law, while it can be understood as a set of rules in itself, the question of its aims being outside this branch of law, nevertheless constitutes the European heart of 'competition policy'.

If we take into account the reasons why the European institutions have developed this corpus of Competition Law so extensively in order to build Europe, the regulatory landscape becomes both simpler and more stable. Indeed, for 60 years and still today, the aim has always been the same: to build Europe, to take it from the stage of a project, a project itself being a reality in itself, a dunamis in the Aristotelian sense of the term, a "power" that action brings to life so that it appears in concrete form in the world. Competition Law has been its 'main pillar', to quote Laurence Idot📎!footnote-2322. . 

But a political project cannot be achieved by political forces alone, and Europe is one of the most blatant examples of this. It expresses a political will, executed by the European Commission, an administrative body at the service of the Union, but this political will must find an echo, an alliance both in enterprises and in the population.

If we conceive of  firms only as subjects, which exist only to be punished when they disregard the statute of limitations on competition, how can this European project, of which Competition Law is a pillar, become a reality, since the main force is in the enterprise and the very purpose of Competition Law would be to constantly reduce its power, not to rely on it? 

The Court of Justice points out, admittedly at the head of many judgments, 📎!footnote-2318 that power is not in itself an infringement attributable to firms, nor is the increase in an enterprise's power on a market, and that if the dominant position gives rise to a "special responsibility", it is not an Ex Post responsibility leading to punishment but an Ex Ante responsibility giving rise to specific obligations. 

But while it is not a question of reproaching enterprises for their power or their desire for power and their action in this direction, the observation remains neutral classic: Competition Law does not want to benefit for itself from the power of enterprises. 

What is more, the relationship between the public authorities and enterprises is traditionally thought of not only in terms of subjection but also in terms of infraction. Indeed, in everyday language, firms are referred to in very repressive terms. For example, everyone uses the terminology "infraction", when in fact it is only a question of violating civil rules, or at best of failing to comply with administrative rules of public policy which are sanctioned by administrative authorities or judicial civil courts authorities, but the reprochable fact does note constitute this sort of offence, a term which implies the violation of a criminal rule. This usage reflects a general idea that it is always a question of hitting a delinquent firm.

Why conceive of them in this way, when the point is to build Europe? It is true that the purpose of Competition Law, which is the subject of so many erudite and disputed reflections 📎!footnote-2314 , can be tautological: Competition Law is about competition. But, as Professor Laurence Idot points out 📎!footnote-2319 Competition Law is itself an instrument of European integration, since French Law, even when it operates in institutional autonomy, is itself a duplication of the substantial European Union Law.

Competition Law should therefore be seen as an alliance with enterprises, not only against them.

Moreover, since every individual is a player in competitive markets, everyone needs to understand why it is profitable for us to live in this liberal system. The debates surrounding the question of whether consumer welfare is or is not the aim of Competition Law are very interesting for everyone and have a very important technical impact on the application of the rules, but they remain very abstract. 

If we do not want, for example, criticism of "ultra-liberalism", which is all the more convincing and flourishes all the more when the listener is unfamiliar with the principles driving Competition Law, then everyone must be able to understand Competition Law through its principles, otherwise they cannot measure its benefits. Enterprises are best placed to do this.

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This is where Compliance Law comes in to support Competition Law. 

Indeed, while Compliance Law is developing elsewhere, and may embody a-competitive or even anti-competitive principles 📎 !footnote-2315 , it also strengthens Competition Law in that it brings it firms and the people as direct allies.

Indeed, "Compliance programmes", often referred to by the French authorities as "programmes de conformité", consist of a commitment by an enterprise itself to promote an attitude aimed not only at not disregarding the competition rules but also, and even more importantly, at promoting to each person for whom it is responsible the importance of complying with them. 

The French Competition Authority's framework document of May 2022 📎!footnote-2320  extends and accentuates that previously drawn up in 2012 📎!footnote-2321, emphasising the alliance thus produced between the public body, which itself supports the enterprise, while the latter undertakes, outside any sanction proceedings, to make those for whom it is responsible understand the interest they have in acting fairly in a market that can only function well if they themselves behave well. 

In this way, the strengths of the authorities and the strengths of the enterprise can converge, particularly in explaining to those who, on the ground and in their daily lives, are not technically capable of immersing themselves in this regulatory magma, nor do they wish to do so, but would like to understand why it is being done and what their role is. 

By thus engaging in Compliance techniques found in many other situations, Competition Law is increasingly reducing its former Ex Post nature to become anchored in the Ex Ante which characterises Compliance📎!footnote-2323 tools, the enterprise, acting on a daily basis, is itself transforming into a professor📎!footnote-2316, ,

This can only satisfy Professor Laurence Idot, a great teacher of Competition Law.

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