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► Full reference: Frison-Roche, M.-A., Notes taken for the summary report of the colloquium of Droit et Commerce, La concurrence dans tous ses états ("Competition in all its states"), June 26, 2021.
This text is the translation of the notes taken in French (this colloquium was in French.
Notes' Summary: The opinions around the "Competition in all its states" highlighted the choices available for what could be this branch of Law tomorrow: choice of a political nature between various possible definitions of Competition Law.
In method, the main thing is that this definition be clear. For this, this definition must be based on a principle and that the goal pursued by competition law is simple, so that in a second step, competition law can be easily articulated on the one hand with other branches of law. (by the care of the judge, in particular), on the other hand with "policies", such as "competition policy", then other policies (by the care of political authorities, especially European).
In essence, two conceptions of principle are opposed: either Competition Law will want to appropriate the goals of other branches, such as those of Regulatory and Compliance Law, or Competition Law will have the modesty to remain anchored in its definition as Market Law. This is the crossroads where we are.
► Method: Because of the richness and diversity of the comments made, in order to keep to the time limit, some passages have not been repeated orally.
Because it is a synthesis, the document is only based on what was said and does not include technical references, nor does it refer to personal work.
► Articulation of the notes taken while listening to the different interventions of the successive speakers:
During two days, listening to all the interventions on "Competition Law in all its states" has brought out the choices that are offered for what could be tomorrow this branch of law: they are choices of a political nature between various possible definitions of what should be Competition Law.
The most important thing is undoubtedly that this definition be clear; in order to be clear, it must be based on principle and the goal pursued by Competition Law must be simple, in order to be articulated with other branches of law (by the judge, in particular), and with "policies", such as "competition policy", and then other policies (by political authorities, in particular European ones).
The speakers proposed various, even opposing conceptions of what Competition Law should be, but all agreed on the fact that it has suffered many shocks and that, without a doubt, its recovery requires a common "culture" of Competition.
The evolution has attacked the very pillars of Competition Law in order to better reconstruct it by moving it from a mainly Ex Post perspective to a mainly Ex Ante perspective, by giving relevance to the objects themselves, notably to data, by taking into consideration human beings.
The evolution can take place by internalizing the perspectives of Regulation and Compliance in a Competition Law that becomes hypertrophied and political, which raises the question of the legitimacy of this "holistic" conception; it can also take place by a Competition Law that remains "self-centered" on its technical notions of market, price, etc., but articulates with the other branches of Law, economic or not. This is a political choice
It is in the hands not only of the States and the Parliaments, particularly with regard to the digital space, but also, and above all, in the hands of the supreme courts, a category to which the Court of Justice of the European Union belongs and to which everyone has constantly referred.
Thanks to Droit et Commerce, to the organizers, to the designers, and thank you to the technicians thanks to whom I was able to listen carefully and with great profit and take notes.
Because after listening 🔴👤Emmanuelle Claudel, who has so well summarized the evolution of Competition Law, and as 🔴👤Marc Mossé said, what more can I say? If not to rely on interventions and discussions that followed to find on the wire what could be the Competition Law of tomorrow.
In a sort of common observation, everyone said: "everything is "complicated", "so complicated", "extremely complicated" and, in a sort of common wish, everyone said: "it should become clearer".
But things are "complicated": this is the price of the finesse and maturity of competition law;
However, the wish for clarity in the future, how can we not share it?
Yes, I will therefore take so many fine contributions to articulate them together in order to extract some "clear" elements.
Listening to you, I asked myself: what will remain of the Competition Law of yesterday and today, in what is in the making for this branch of law tomorrow?
In that Competition Law is a branch of Law, which is part of an Economic Law that is not limited to Competition Law
in that, beyond the Law, competition, which is its basis, is part of and must be "articulated" with a Competition Policy, which itself is part of commercial, social and industrial policies and concrete concerns, such as health or employment, for which governments are accountable to the population
So let's make a synthesis, as if we were making a stopover to start again.
Yes, in this synthesis, let's not complicate things even more and let's try to retain some clear elements.
This is not necessarily easy because you do not necessarily have the same conceptions.
But as for me, I have benefited greatly from everything I have heard. As a specialist like you in Competition Law and because with my colleague and friend 👤Jean-Christophe Roda we are putting the finishing touches to the new edition of the Précis Dalloz du Droit de la concurrence, which will be published soon.
Why is it so profitable?
Mainly, for two reasons:
1° Because the expression "competition in all its states" was so well chosen. Yes, we are all "in a state". Everyone has rightly put themselves in the path of this title. We, the competition law specialists, are "in a state", but we will have to get over it, despite the pessimism of some.
But in any case, the subject is not "Competition Law". This is not the title of your work, which was not supposed to be about "competition law" but, according to the title, about "competition": it is indeed competition that you have measured the state in which it finds itself. And it is only by repercussions that Competition Law evolves and will evolve.
And precisely, if we can hope that Competition Law will endure and "recover", it is not a given, nor is it undoubtedly desirable that competition will continue to be (as it has sometimes been presented) or will become again the alpha and omega of an ideal organization of an economy, or even of a society.
A competition law that would distance itself from the ideal of pure and perfect competition was often expressly desired:
Because the time when the principle of competition was to govern everything, to embrace everything, to dominate everything is perhaps over. And that is what competition specialists themselves may wish for: this was the focus of 🔴👤Emmanuel Combe's talk. In doing so, and he emphasized this, it will bring Competition Law back to more "modesty", leaving other policies their place, such as trade practices policy, and ceasing to silence the other branches of Law, finally leaving them the possibility to exist: the Labor Law, human rights, especially so that human beings are more considered in themselves.
Even more, the time of a "competition", with what was once, as perfectly said by 🔴👤Emmanuelle Claudel this kind of "servant law" that had become the " competition Law, dominated by economic thought, human beings being restored in the form of rational economic agents, guided by prices, has perhaps " reached the end of its time".
It is possible that it leaves the place to another conception of the human being, because what some have designated as "the competitive Order", would not claim to express all the Law any more. And even more the Law, itself transparent, simple tool to a commercial conception, could leave place to something else than the Law: leave place to the Politics.
Everyone has always talked about politics, especially through German law and the model of order-liberalism in which the competitive perspective is present but does not necessarily have the last word. No, it is the politician who then makes the choice between competition and something else. And speakers have often referred to this perspective, particularly in the case of a concentration that, once the competitive analysis has been exhausted, a body, and a political body, can intervene to evoke, or even impose, the political dimension.
This political dimension was present during the two days of the colloquium, so that in "competition" there is not only Competition Law, there is something else, for example the consideration of human beings in themselves, when they are victims, as evoked 🔴👤Maurice Nussenbaum.
This competitive dimension that intersects with other dimensions, what other legal systems envy us, is indeed the three acts that are being voted in the European Union. For there is not only the Digital Markets Act, so often and so rightly mentioned by many speakers; there is also the Digital Services Act, which is concerned with content and its effect on people, as well as the Digital Governance Act, which encourages companies to build a sovereign Europe themselves.
These three pillars (which evoke the 3 pillars on which European banking was built) with a strong political dimension allow us to grasp what is not a "market, probably not even a "sector", but a new world: the digital world, of which 🔴👤Frédéric Marty has shown the imperious need for regulation.
But isn't Regulation Law a different branch of Law from Competition Law? We will come back to that.
In any case, everyone has come to the bedside of Competition Law to take its pulse and listening to you I have learned a lot about the various remedies proposed. It is the medical vocabulary that you preferred, each one finding that it was not going well but each one wanting to help the subject in danger so that it regains strength.
Without doubt the "remedies" proposed, vocabulary already installed in the matter, were not the same. This brings me to my second subject of great satisfaction.
2° Because I was able, as the sessions went on, to note that if the speakers were completely in line on the interpretation to be given to this or that text or case law, and often cited the same "famous cases" (the sanctioning of the "vitamins cartel" or the refusal of the merger between Siemens and Alstom), they were not necessarily in agreement on the basic definitions.
For example, what is competition law? What is it for? What is the place of companies in this branch of law?
Thus, under the recalled texts and similarly evoked jurisprudences, different, even opposite conceptions appeared. And 🔴👤Frédéric Marty expressly said that "the time for consensus was over". He said this about a particular topic, but isn't it true in a more general way about the very definition of Competition Law? Listening to 🔴👤Marc Mossé who, " Grand Témoin " affirmed that he did not share the same conception as 🔴👤Emmanuelle Claudel , who had conceived the whole event, on what is and must be the Competition Law, one can say to oneself that it is in a general way that the time for consensus is indeed over...
But then, what will happen tomorrow?
Because one could be worried about not knowing where one stands and think that these opposing views blur the view that one can have of the matter, and consequently be troubled...
For my part, I find, on the contrary, that it enlightens it and it is a great satisfaction to have heard so many opposing conceptions.
if opposing conceptions appear, they indicate that several futures are possible and that simple choices must therefore be made; simple choices, that is, choices of principle.
Since you all wished for clarity in the future, while the cases are complicated ... So we need principles: it is the practical utility of principles to provide clarity.
And the more "complex" the cases are (the expression was very often used, for example by 🔴Jacqueline Riffault-Silk describing the jurisprudence that has to respond to more and more complex cases), and the more relevant for the future it will be to know the basic definitions.
For example, what is the Competition Law..., whose purpose we will know ... for the service of competition, whose usefulness will be known ....
Thus, both 🔴Emmanuel Combe and 🔴Frédéric Marty insisted on the practical utility of giving a clear purpose to competition rules and asked that they be given only one purpose, because if they are assigned several purposes, then everything becomes "complicated." I know that most often it is said that it is the "complexity of the world" that leads to giving several goals, that it is intelligent to do so, but this beautiful word often just hides the complicated nature of the regulations, even of the minds. Those who are subjected to them ask for a return to "simplicity" and "clarity": this is what you have all said.
I have therefore noted the points on which you seem to agree and the points on which you seem to disagree. Sometimes you seem to agree on relatively unimportant technical issues and you seem to disagree on key principles.
Since everyone has argued his or her point of view strongly, I can only conclude that the state of competition law tomorrow would therefore be a matter of choice.
And if I have followed what everyone has said correctly, these are indeed political choices, in terms of the society in which we want to live.
But the practical question then becomes: who has the legitimate authority to make these choices?
Here again, listening to everyone, I thought :
to hear the company say: I am the one who makes these choices, notably through the purpose of existence.
to hear the competition authority say: I am the one who makes these choices, in particular through the leniency programs
hear the judge say: I make these choices, in particular through what we bring
What say the political bodies, for example the governments? They have not spoken here, but political choices are made through the DMA, DSA, DGA.
And what does the population say? It has not spoken either, but it is possible that it will make its voice heard on these subjects. And the voice of the "stakeholders" was indirectly evoked by 🔴David Bosco through the "subjective rights".
In any case, since I have only to gather elements of everything that has been said, I will proceed in three stages, because it seems to me, first of all, that everyone agreed that competition law must recover from the "shock" that has put it "in a state of confusion" (I). But this is difficult because it has lost the very pillars on which it was built and on which it functions, which leads to making definitional choices in the future, which are above all political choices (II), which leads to determining who will have the power to establish competition law in its new state, resulting from such choices (III).
I. RECOVERING FROM THE SHOCKS THAT HAVE PUT COMPETITION LAW "IN ALL ITS STATES"
🔴Emmanuelle Claudel has perfectly described all the successive "shocks" that have hit Competition Law, which is challenged in its very definition and "competed" with by other branches of Law, as pointed out 🔴David Bosco.
In order to recover, it is indeed necessary first of all to recognize that the damage has been done (A). But then what were the proposed "remedies"? (B).
A. ADMITTING THE EFFECT OF THE BLOWS TO COMPETITION LAW
🔴Emmanuelle Claudel described it perfectly: with a kind of disempowerment, Competition Law losing its basic notions, price, market or dominance, either stripped of them by others or abandoned them. The Digital Markets Act was on everyone's mind and in everyone's interventions.
Here we are, all of us watching the King Competition Law pass by, but the speakers have given us back our childish eyes and we can see what has happened to his beautiful attire today ....
However, beyond this difficulty of a King that many have ceased to adore because today "competition", the ideal of Competition Law, is less triumphant..., one cannot technically admit a branch of Law that no longer has its basic notions.
The first temptation is to revive Competition Law by fortifying it, as is done with the "baby-branches of the Law": they are built on the only procedure: "effectiveness, efficiency".
It is a weak vision, but one that has the merit of existing and that has often been recalled in this trio that reassures: " effectivity, effectiveness, efficiency ". However, efficacy is only a procedural notion. Applicable to all other branches of law, for which there is no reason not to want them to be as fully effective, efficacious and efficient, this principle is "balanced" against the fundamental rights of individuals. But this also works for all other branches of law. And the "balancing" is itself a procedure: all this does not give rise in itself to substantial rules, proper to the subject, which must find its own definition.
But how can one go about finding new notions?
The speakers showed that Competition Law is being revitalized by borrowing. In particular, by going to look for notions specific to Regulation Law, as demonstrated by 🔴Frédéric Marty. Or by integrating the objective of "sustainability" or "stability"; yet "stability" is rather a notion specific to Monetary, Banking and Financial Regulation, to prevent in Ex Ante systemic crises.
By such borrowings, Competition Law participates, certainly, in the great movement by which societies ask the power of Law to grasp the future. It must then be admitted that competition law is losing one of its pillars, which was destruction, even if it has long been the case that, from a more political perspective, texts have been asserting the legitimate aim of establishing "sustainable competition".
The second temptation is indeed to borrow, mainly from Regulation: like sustainability implying stability, whereas competition rather implies instability? Why not. Sustainable competition" claims to achieve this.
Regulation would thus be the future of the Competition Law.
B. AT THE "BEDSIDE OF COMPETITION LAW: THE "CULTURE OF COMPETITION
Once the diagnosis has been made, if we do not want to leave the patient on his deathbed, as the situation was sometimes described in such dramatic terms, what remedies are proposed that would not take the form of weakening another actor or another discipline?
It was proposed by several speakers in one voice: the construction of a "culture of competition".
🔴Emmanuel Claudel, 🔴Marc Mossé, 🔴Irène Luc, 🔴Loraine Donnedieu de Vabres all insisted on the advantages and the concrete possibility to build this "competition culture": professor, company and authority, lawyer, can together ally, and therefore agree in Ex Ante, so that the basis is admitted: not to abuse its position, not to block the access to markets, not to make a deceitful agreement.
These pedagogical alliances between the company and the authority were expressly attached to the "negotiated law" that the "Law of yore" knew (the works of Carbonnier on the "negotiated law" are long-standing) and the "Law of tomorrow" that is the Law of Compliance is largely based on it.
As in other branches of Law, this "negotiated law" certainly has its downsides in Competition Law: 🔴Irène Luc has shown that companies are actually less enthusiastic than they seem in cooperating, but since it is that or be severely punished, so they "cooperate"... even though they do not know well what they are exposed to...
But 🔴Loraine Donnedieu de Vabres insisted on the contribution of "compliance programs" to allow a kind of "accelerated" maturation. Yes, since it is in terms of "rebirth" that we have to conceive the matter, we might as well make it grow as fast as possible.
Because it is indeed to tomorrow that we must think.
But in what state will competition law be tomorrow?
Listening to all of you, one after the other, it seems that in practice it will depend on the definition that Competition Law will receive of itself.
II. THE DEPENDENCE OF THE FUTURE STATE OF COMPETITION LAW WITH RESPECT TO THE DEFINITION TO BE GIVEN TO THIS BRANCH OF LAW
The redefinition of competition law is a practical issue (A). Indeed, if we destroy the notions, goals and reasoning on which this branch of law was built, then new anchors may be found in the future, different or even inverted from the previous ones, which leads to repositioning competition law among the other branches of law (B).
A. THE PRACTICAL STAKES OF THE CHOICE OF THE DEFINITION OF COMPETITION LAW
The issue of the definition of competition law is a practical one: are we moving towards a definition of competition law that reduces its power? Or are we moving towards a definition of competition law that increases its power?
It is undoubtedly because this practical issue is of such great importance that the positions have been so divergent.
If we want to increase the power of competition law, we can do so on the one hand by freeing it from the traditional notions that condition its implementation (the market, price, etc.).
This power can be increased even more by taking it out of its legal technicality and tying it to "politics", not only "competition policy", but also to all other policies, since everything is in everything. Competition specialists are "cautious" about this great prospect and seem to appreciate neither the first nor the second method of extension.
For example, the expression used by 🔴Emmanuelle Claudel of "self-centered Law" refers to the very idea of a branch of Law, which remains anchored on its notions and allows it to function in an autonomous way. It is up to the judge or the legislator to make several branches of law work together in the same situation. This autonomy, on which refers this "self-reference" on which 🔴Emmanuelle Claudel insisted, which allows Competition Law to remain a branch of Law in its own right.
Similarly, 🔴Emmanuel Combe, in his analysis of the Siemens/Alstom merger refusal, justified it by insisting that "Competition Law" and "Commercial Practices Law" should not be confused. Let us not confuse them in order to better articulate them. But it is then up to the Commission as a plenary body and not to the Competition Authorities to make this articulation.
On the other hand, the Competition Authorities are clearly strongly in favor of such an extension of definition, by unleashing the Competition Law from its basic notions and by entrusting it with new and diverse goals. This certainly leads to allowing the Competition Authorities to make Regulatory Law, which refers to an evolution between the branches of Law and to the relationships between the institutions (because it is not a given that the Regulatory Authorities conceive it this way).
It is true that in practice such an extension in the definition would solve the question of international coordination. Indeed, faced with global difficulties or challenges, States are often technically powerless, whereas competition authorities can adjust, thus compensating for the absence of a global competition law.
Yes, it is still necessary that the various Competition Authorities around the world have the same political conception of the world and of the way human beings should live in it... Now, this is undoubtedly shared in the West, and only 🔴Emmanuel Combe has, on several occasions, reminded that China exists.
In any case, these initial discussions have shown that everything in the future will be a question of definition, that this definition is a choice, and that it lies in the goal that one gives to competition law, a goal that is identified in consideration of the place that one wants to give politically to competitive mechanisms in a human society.
B. THE DESTRUCTION OF THE PREVIOUS ANCHORS AND THE APPEARANCE OF NEW ANCHORS FOR WHAT WOULD BE A NEW, DIFFERENT OR EVEN INVERSE COMPETITION LAW
Competition law no longer seems to want to depend on the basic elements on which it was built and on which it has functioned, which opens the future to other basic elements, sometimes contrary to the vestiges left behind.
Any branch of law is built on definitions of concepts, qualifications and reasoning. If it loses them, eventually it will not be limited anymore. This was clearly stated.
I have listened to the transformation or destruction of the very pillars of Competition Law.
The concern for the only Ex post and the indifference for the Ex Ante to, on the contrary, rebuild on it (1) ;
The concern for competition alone and the indifference for competitors in order to refocus on them (2);
The concern for the markets alone and the indifference to the sectors and industries as such, in order to take them into account as such (3);
The concern for the free functioning of competition alone and the indifference to companies as such, to human beings as such, to the objects offered as such and, on the contrary, to recognize them as direct objects (4).
This leads to questioning the position of competition law in relation to the other branches of economic law, either by wanting it to be reduced to nothing (butchered by the others), or by wanting it to swallow all the others (4).
1. The abandonment of the sole focus on the Ex Post in order to broadly welcome the perspective of the Ex Ante
Let us first take what was a first pillar (which is perhaps a vestige...), namely the "Ex Post / Ex Ante" distinction.
In its "previous state", Competition Law was an Ex Post Law: its "relevant time" was the past, while Regulation and Compliance Laws are rather Ex Ante.
As 🔴Christophe Lemaire reminded us, if there is an Ex Ante structural problem, classical Competition Law certainly has a tool: merger control. But the difficulty comes from the fact that there are Ex Ante structural problems that appear outside of any merger fact. Speakers have emphasized the importance of the "Article 22 reform", which extends the scope of control, but this will not be enough. However, the Ex Ante only existed in competition law in this particular area, namely merger control.
This may appear to be a weakness, but it is also the distinguishing criterion between Competition Law and Regulation and Compliance Law.
Should we consider that this "special law" of merger control, because it is Ex Ante, is the model of tomorrow's Competition Law? There has been such a tendency to consider it that the answer would be positive .... Thus, through merger control and the practice of commitments, these commitments become a general tool, a sort of model to which everyone has referred.
Why not? The change is far-reaching: competition law increasingly takes the future as the "relevant time". Merger control would be too restrictive for the authorities, who have to wait for a merger to take place. This is why commitments, a mechanism for the future, have already become widespread, particularly with regard to future behavior.
But more than that, Competition Law could become a pure Ex Ante Regulatory Law. Why not. 🔴Frédéric Marty presented it as a given in digital matters. Simply, Regulation LAws are sectoral Laws, with specific Authorities building market structures to achieve non-competitive or anti-competitive goals set by the Policy. The Constitutional Authorities have recalled this political division between the Authorities Accountable to the Parliament and the Independent Administrative Authorities controlled by the judge.
But if Competition Law wants to become an Ex Ante Law because it takes as relevant time the future, then it must improve, as shown by 🔴Maurice Nussenbaum , especially in the calculation of "loss of opportunity", way of apprehending the future.
🔴Christophe Lemaire exposed all the place that could be taken by Ex Ante remedies, such as commitments, as shown by 🔴Loraine Donnedieu de Vabres through Compliance programs.
Having changed time, taken as primarily relevant time the future time, leads to much change.
2. Abandoning the watertightness between competition and competitors to integrate system custody and repair
A second pillar (which is also perhaps now a vestige...) was the distinction between the civil law of competition and the economic law of competitive markets, in the idea that the first, based on civil liability, settled specific disputes between competitors, while the second, more fully economic, kept the freely competitive markets in a public policy perspective. With the difficulty of knowing where to place the law of restrictive practices ...
But 🔴Jacqueline Riffault-Silk recounted how, from case to case, slowly, Competition Law has turned its gaze to the victim. Probably because a judge always thinks about it ...
And 🔴Maurice Nussenbaum explained that the notion of effectiveness has no reason to apply only to the Law of competitive markets that it must also apply to the reparation of damages generated by breaches made to the prohibition of cartels.
This articulation has an essential effect: the evolution of the evidentiary system in favor of the victim. In this respect, we can consider that we are close to the logic of the Law of Compliance for which subjective rights, in particular the subjective right of victims, are a "tool of Compliance Law".
If it is true that subjective rights were never forgotten by Competition Law, everyone has noted that the interested parties can make their voices heard more, which are found to be too loud especially when one is not a victim. 🔴David Bosco underlined the place of subjective rights, i.e. of people in the technical mechanisms that the Law inserts in the digital world, while 🔴Frédéric Marty also evoked the power of digital operators, presenting it as a kind of "privatization".
It was during the debates that the question was expressly asked in these terms: "in the future, are we not going to witness a privatization of Competition Law?". The question remained open.This is probably because private enforcement is not necessarily a "privatization" in that it is a tool inserted into the system to increase its effectiveness in the interests of public order. Moreover, the protection of subjective rights is what law is made for, at least Western law, a framework in which we have remained, but which we must defend.
The "rights to" were evoked by 🔴David Bosco, referring to Carbonnier. Certainly, the latter, when he evoked the "pulverization" of the Law in 1995 in his work on La passion du Droit used this verb in a critical way but when he wrote his article on De minimis praised the concern that the Law had in 1978 for the consumer. Moreover, the "rights to" were rather conferred by texts of Regulation Law (the "right to competition" never really flourished), this branch of Law often relying on subjective rights granted by law, notably the right to access the network (which is distinct from the theory of essential facilities). Moreover, the Law of Compliance has the monumental goal of ensuring that the population has effective subjective rights, and it is from it, through the often cited Google Spain jurisprudence, that the revolutionary "right to be forgotten" was created. But Compliance Law is not Competition Law: Competition Law cannot and should not deal with everything.
Thus, it is not because individuals are effectively protected that we leave the perspective of public policy. 🔴Lucienne Erstein has moreover shown how comfortable Competition Law is in the mechanism of the State, particularly in the legal mechanisms of public procurement. States are reconciled with competition law, and will be even more so if it makes room for regulatory mechanisms.
Moreover, the fact that public entities can no longer be totally discretionary in their economic decisions, as Lucienne Erstein reminded us, shows not a retreat in the place of the State but, on the contrary, that public action is more in line with the Rule of Law and the requirement of a common fairness of commercial actions. These remarks echoed those of 🔴Emmanuel Combe on the Law of Commercial Practices, a major issue in view of what is happening in China.
But this power of the State to impose its political conception can make its way into Competition Law. This is what Sarah Guillou has exposed by showing that "national champions" could be admitted in view of political economy justification. For the moment this has not convinced the European Competition Authorities, but as 🔴Emmanuel Combe pointed out, the Commissioner for Competition does not sit alone in the Commission.
As 🔴Emmanuel Combe said in an insistent way, in the future, we will have to look at the side of the industry and commercial practices, and for that Europe will have to go beyond Competition Law alone.
3. The abandonment of the alpha and omega of the "market" to apprehend more broadly the "sector" between competition and competitors to integrate system custody and redress
🔴Emmanuelle Claudel warned from the outset: we could arrive at a Competition Law that would no longer have to identify a market to apply ....
This unbridling allows it to seize the digital space as well as GAFAMs.
It is true that competition authorities have long practiced "sector inquiries", which leads them to extend their field of vision. This also leads them to articulate themselves with Regulators (who are then presented to us as "vertical", being only sectoral) which allows the Competition Authorities to present themselves as "horizontal regulators". The development of structural tools such as injunctions, often cited, is the technical consequence of such a scheme.
And the very construction of this conference proves them right: dealing with Competition Law, the whole of its last panel focused on sectors such as digital or health.
This suggests that the trick is therefore institutional design, as "interregulation" (a hypothesis proposed in 2006, based on Regulation Law) will not be easy. 🔴Christophe Lemaire gave a striking and detailed example through the case in which the German Competition Authority was confronted with the GDPR, raised the possible contradiction between the two cores. And companies will be able to evade Competition Law by invoking their obligation to obey Competition Law, thus regretting to have to decline their submission to the former rules. The system of "bridges" between the two branches of law can only work as long as they do not clash.
Inter-regulation is therefore on the agenda and will be a major issue, falling rather under a logic of Public Law, referring to the goldsmithing of the hierarchy of norms, because we will arrive at negative conflicts or positive conflicts between Competition Law, Regulation Law and Compliance Law. 🔴Alexandra Mendoza-Carminade added Intellectual Property Law, in the sense of a rather positive, i.e. violent, conflict.
4. The abandonment of the principle of indifference: indifference to the company as such, indifference to the products as such, indifference to the human beings as such to pay attention to the company, the products and services and the human beings as such
The main pillar of competition law is its principle of indifference to what happens in the markets. This ability allows it to take into consideration only the conditions of trade, notably the price, not what is traded as such, nor those who trade as such.
This could change, if we adopt what 🔴Marc Mossé has designated as the "holistic conception" of Competition Law, which he calls for.
With respect to the firm.
In its classical conception, the firm is both the "subject of law" of Competition Law but it is only apprehended through its activity. As such, it is a "black box". 🔴Marc Mossé has shown that through the " purpose of existence " an evolution was taking place since it is within it that Competition Law is now deployed.
No doubt, with regard to GAFAM, it would have been possible to demonstrate similarly, in a critical way or not, that these companies appropriate this Law, charging it with other goals than the "self-centered" functions beyond which 🔴Emmanuelle Claudel wishes that this branch of Law does not scatter.
Some have fearfully seen in this a "privatization", that is, an appropriation of the whole branch of Law, a kind of jackpot, of a branch otherwise of public order, in the face of what had been one of the themes of the program designed: the theme of "gigantism". When the subject of law, as is the case with GAFAMs, is larger than Regulators, is it necessary to internalize the rules in order to obtain the effectiveness of these rules? in particular through "culture" and "negotiation"? (as was discussed)
Or is the remedy worse than the problem, since the law then gives the company even more power?
This essential question of whether "gigantism", an excellent expression chosen in the titles of the program, was mainly addressed by economist speakers. This is probably because competition law does not deal with the dimension of the firm as such: its basic reasoning is indifferent to the dominant position, it only reacts to an exploitation of this dominant position.
It is only in another branch of Law, Regulation Law, that "dominance" is treated as such, either to reduce it, or to permanently monitor it; moreover, in Compliance Law, dominant operators are sought after since they are in a position to concretize the "monumental goals" that define this Law (such as the fight against money laundering, or the fight against disinformation), these last two branches of Law thus placing these operators in permanent "supervision".
Competition law does not impose on companies any principle of transparency, nor any mechanism of supervision, nor any ex ante control. Indeed, the fact that an "actor" is "giant" does not affect what 🔴Frédéric Marty has designated as "standard Competition Law".
To take "dominance" as a new subject, with new powers, such as injunction, new notions, such as transparency, the Authority has to go through the looking glass and arrive in a Regulatory perspective. As it is a question of interfering when no behavior is likely to be blamed, the Constitutional Council in 2015, undoubtedly remaining "standard", recalled with regard to large-scale distribution that one could not use the instrument of structural injunction without any targeted behavior, because the principle of freedom of enterprise was so offended that the Constitution was affected. l It is true that, as explained by 🔴Frédéric Marty the digital space undoubtedly requires what he expressly designated as "Ex Ante Regulation".
This is an object that competition law could take up as such. Because today, everything seems to be reduced to being "data". But here again, the construction of the conference was very relevant because it is indeed in terms of "gigantism" that we must reason and undoubtedly of industry. The evolution is major, and the association "Law & Commerce" can only be sensitive to it, Competition Law had taken as its pillar, as its very principle, trade, and not industry; the manufacture of things, the supply of raw materials being relatively secondary phenomena, revolving around the essential: trade.
Today, as explained by 🔴Christophe Lemaire the data is an industry. But this industry undoubtedly has issues that Competition Law can apprehend, including negative issues, such as barrier to entry behaviors, or mergers to kill, discussed in detail, the Law having adapted to this, but also positive issues, such as the consideration of innovation as the primary goal of Competition Law, in connection with the adequate price. It was recalled that the addition of goals presents a risk, but in so doing, this new world undoubtedly detaches competition law from commerce and links it to industry.
This would be such a profound move that the very definition will be changed, since competition law would no longer be anchored in commerce.
This might be worthwhile and should be taken further.
Because, in the same way that the criterion of price had made the services and things exchanged obscure, in the same way "data" is an obscure notion that tends to mask the underlying concrete reality, such as the bodies of human beings or private life. China and the United States, each in their own way, do not seem to care about this, but Europe, with its own tradition, does.
What can competition law say about this? For example, when the data concerns the individual? This will depend on the consideration that competition law could give to human beings, which has not been its main subject so far.
with concerning human beings
Human beings are not relevant to competition law because they are apprehended by it as "rational agents", a mechanical vision: we would all be rational "agents", guided by our particular interest, more or less skillfully pursued. Only the "homo economicus" is therefore entitled to a place in Competition Law.
Listening to 🔴Marc Mossé , I nevertheless heard like an echo of Alain Supiot's voice, he who was heard by the Legislator of the " purpose of existence", defining the company as a group of human beings gathered to realize a project that is common to them, realization that is concretized on a market regaining the liberal conception that the authors of the 18th century had.
This concern for people leads Alain Supiot to want employment to be thought of in terms of the human being that is the "worker" and not in terms of the classic principle of the law of supply and demand, which states that the worker is an asset. Competition law is undoubtedly knocking at the door of "employment policies", while labor law and competition law are on opposite sides of the fence, the former positing the equality of each human being, unique in itself, the latter the substitutability of each one by all and its value according to the appeal that others have of its services. It is to go towards a readjustment of the branches of the Law between them.
This concern for people is, in any case, what the health sector is entitled to claim: it does so in a twofold way, first of all when it grants monopolies to those companies required to provide these goods that the State considers as "particular" and which are medicines. In a second movement, and in a non-contradictory way, because it is still and always the concern of the person, the monopoly of the intellectual property can retreat if the protection of the human beings requires it. This concern animated 🔴Alexandra Mendoza-Carminade to assert that the good of the patients was better served in the health sector by the mechanism of legal license, linked to the principle of competition than other systems. She concluded that in these issues, which she described as "burning", the future was "uncertain" because there was a lack of "model".
Yet we are full of works and diagrams and articles. But if there is a lack of "models", it is probably due to the fact that on the one hand there is a lack of clear and simple principles and on the other hand to the fact that for the moment the political choices have not been made.
No more so in health than in other sectors. However, by listening to the various speakers, under the technicality of the cases, the texts and the comments, I have learned that in competition law, everything is a matter of political choice.
5. The renewed situation of competition law with regard to other branches of law
All of these movements, so well described, require that competition law be resituated in economic law and in the legal system. Thus, for example, it is less than ever accepted that competition law is a body of law that belongs to "private law".
But asking where Competition Law is in the legal system has practical stakes: if Competition Law ceases to be the "Common Law of Economic Law", as it was presented for so long as "Market Law", while the few sectors of the network industries would have been "public law", while, for some mysterious reason, the Laws governing the banking and financial markets remained "private law", then the Competition Authorities would lose the "competence" to intervene everywhere, even without a text everywhere (since everything is market...).
As soon as the notion of market ceases to be the alpha and omega of economic law, competition law would no longer be at the center.
In the future, where is competition law in the legal system?
Its provisions would cease to apply "in principle" to all sectors; it would cease to apply "in principle" in all sectors, which would be governed only by regulatory laws that have the status of "special laws".
Even more, if we take Compliance Law, 🔴Loraine Donnedieu de Vabres took the example of the effectiveness of Facebook's commitments in Competition Law. Thus, Competition Law is "served" by compliance techniques. Moreover, if we take the French Competition Authority, the statement by which the Authority takes into consideration its proposed commitments is expressly called a "regulatory act". Thus, for competition law, Facebook's commitment, which belongs to compliance law, would only be a regulatory act, which itself would only be a new deployment of competition law.
Why not this Russian doll conception? This conception of "compliance programs", simple "enforcement methods" of Competition Law, is not shared by the Compliance Authorities. However, we are dealing here with competition law specialists and this servant position has not been challenged.
In the future, it is not certain that Competition Law will be able to "swallow" both Regulatory Law and Compliance Law to this extent.
For it is political choices that will then be made.
Just as it is choices of this nature that are expressed in the definitions of Competition Law itself that have emerged in the interventions and debates.
B. THE POLITICAL CHOICE OF A FUTURE DEFINITION OF COMPETITION LAW: BETWEEN TECHNICAL AND "SELF-CENTERED" COMPETITION LAW AND "HOLISTIC", POLITICAL, SOCIAL AND ETHICAL COMPETITION LAW
This is not just a "rhetorical" question, since it is the very definition of the Branch of Law that gives competence to the Authorities and governs the functioning of the hierarchy of norms.
Moreover, the flame with which some have insisted that never, never, never, should there be a political definition of Competition Law, shows that this is not just an exercise because excluding any political dimension of Competition Law is a political position like any other.
But on the contrary 🔴Marc Mossé, who, as a "great witness", was invited by 🔴Emmanuelle Claudel to tell the long novel between Microsoft and Competition Law, preferred to evoke the future by affirming that Competition Law would not gain from such a narrow and technical conception and that a more "holistic" conception should be substituted.
Instead, he argued that competition law must be connected to the "cultural context" and history. A non-specialist in competition law might think that it is rather the whole legal order that should be connected in this way, and not just one branch of law, which is not intended to absorb all the other branches. And this takes away all the more the prospect of a global Competition Law, the one that 🔴Emmanuel Combe reminded us that nobody was thinking about.
The heart of a future Competition Law would therefore be there: in its position in the legal system, a position resulting from the definition that one will have decided to give it.
Alain Supiot affirmed, in agreement, for example, with Philippe Aghion, that companies and their managers chosen by the shareholders must have a simple and unique goal: money, while public institutions, directed by people regularly elected by citizens, decide for the future of the social group. The only obligation of companies is to pay taxes. This is being translated legally, and outside of competition law;
If one thinks that companies are "citizens", as stated by 🔴Loraine Donnedieu de Vabres, then not only does this change Competition Law, but their contribution being so operated, they can argue that their "societal responsibility" is fulfilled and that they have no further accountability.
This underlying political debate has been taken up by the numerous references made to the German model, which in its law integrates this "social reality" into "ordo-liberalism". In this one, translated institutionally in Germany, it is the State that takes into consideration this reality and mixes it with the competitive perspective that is brought by Competition Authorities. 🔴Frédéric Marty made the conjunction between this way of doing things and the way in which Competition Law evolves in digital matters, in its passage from ex post treatment of abuses of dominance to ex ante treatment of dominance without fault (that is, as he expressly said of the passage to "Regulation", because it is indeed a question of "regulating an ecosystem").
Yes, but in ordo-liberalism, it is the government that balances the various goals pursued. And 🔴Frédéric Marty, like 🔴Emmanuel Combe have insisted that Competition Law should not be asked to pursue goals that are not about competition.
It is clear that from the political and power point of view it is not at all the same thing to put the "cultural, social and industrial" reality in the Competition Law - by considerably increasing the discretionary power of the Competition Authorities to transform them into Ex Ante Regulatory Authorities - , or to take it into consideration outside the Competition Law
If Competition Law is "self-centered" and the Legal Order is not reduced to the "Competition Order", it is because it admits that other branches of Law still have the right to live: Constitutional Law or Social Law ....
The practical effects are of an evidential nature, generated in the classification of behaviors as the opposition between principles and exceptions. Thus, to take the behaviors of "collaboration", the Competition Law will qualify them "in principle" as agreements, at first sight prohibited, except exception, while in the Regulation Law, the collaboration will be in principle the way to generate a structural solidity. The future of exemption regulations and the guidelines on "vertical agreements" are undoubtedly the points of contact between Competition Law and Regulation Law.
Knowing which "principle" is the starting point is essential, because the proof of the lawfulness of the situation weighs on the shoulders of those who are in the exception. If we are in Competition Law, those who collude must "prove that nevertheless their behavior is legitimate, as we could follow in the presentation, moreover critical, that 🔴Emmanuel Combe made about "export cartels".
But if we are in Regulation Law, the cartel is the principle because it allows the structuring of a sector ensuring its solidity and stability over time to achieve non-competitive goals.
If Competition Law "swallows" the other branches, by imposing this "principle/exception" system with its evidential consequences, the other branches of law (Regulation and Compliance) being inferior to it, in the future any non-competitive situation would have to be justified by any person concerned by it as being based on a legitimate exception.
However, it can also be admitted that each branch of law is built on its own principles and must be articulated with the others: Competition Law remaining solidly "self-centered" on its specific notions and purpose, according to the words of 🔴Emmanuelle Claudel and 🔴Emmanuel Combe, and having to articulate with other branches of Law that have other principles and purposes, such as stability over time and prevention of systemic crises, as are Regulatory and Compliance Rights.
The more each branch of Law is anchored on its own principles and goals, the more they can be articulated with the others (articulation operated by the judge, guardian of the complete legal system and the politician who is master of the policies to be implemented, for example in the name of a sovereign Europe).
Thus, as said 🔴Emmanuel Combe, a Competition Authority can perhaps make a "competition policy", in particular via merger control, but not an industrial policy. On the other hand, the European Commission, which cannot be reduced to being only a Competition Authority, can have a "policy", which is not reduced to Competition Law. Which can therefore remain "self-centered", according to the criteria identified by 🔴Emmanuelle Claudel.
🔴Emmanuel Combe, in order to approve the taking into account of other things than prices, markets, etc., always referred to the European Commissioner Thierry Breton, insofar as he carries an industrial policy of Europe. Thus, Competition Law could not embrace everything; yes, but Competition Law should not claim to express all Economic Law. And it is the Economic Law, which is not reduced to the Competition Law, which cares about other things. This is why 🔴Emmanuel Combe puts his hopes in Trade Practices Law, to build a "trade defense". Notably because Europe is in a position to integrate in its perspective China, of a more global matter than Competition Law can do, even in its Ex Ante part constituted by merger control.
Thus, the reorganization of the branches of law allows competition law to be given its rightful place so that all the branches of economic law can be articulated with each other.
The practical question is then the following: who will give competition law its definition and its place, in order to assign it its future state?
III. WHO CAN LEGITIMATELY DEFINE COMPETITION LAW?
At first sight, it is the legislators.
Who, in their sovereignty, can define the rules, notably by the goals they serve.
In this, the hierarchy and the articulation of the norms will be at the heart of the Competition Law. The test is constituted by the triptych that the Commission, as scribe, has elaborated by the DMA + DSA + DGA, which the European Parliament is considering,
The Competition Law of tomorrow will result from the legislative articulations between governments, parliaments and courts. It is indeed from this kind of interlinking that this Competition Law will find its State tomorrow because, as was underlined by 🔴Emmanuel Combe, there is no "global Competition Law".
Even more, as pointed out 🔴Marc Mossé, there are strong traditions in this area. For example, let's take the one we don't talk about, China. It seems that the normative authority in terms of Competition Law is ultimately the Communist Party, for example in its handling of the prohibition of abuses of dominant position to remove any voice from a powerful company whose president would have wanted to speak with a voice that was too autonomous.
If we stay with Western competition law, which reminds us of the modesty that must remain its own, the norms are only effective in the end through their guardian, the judge, and more particularly the judge who sets out the principles, the supreme courts.
Designating "supreme courts" in Western law in matters of competition law can be very useful in practice, in that a "supreme court" can take up a concrete case to draw out a clear principle that will serve as a guide for the future: this is what everyone has asked for during this conference.
We know the role that the Supreme Court of the United States has played in Antitrust Law.
In Europe, the High Courts tend to present themselves as a "supreme court" ..., while the constitutional courts interfere in Competition Law and one can hope, not only for the strengthening of subjective rights but also for the safeguarding of freedoms, that a constitutional corpus will be strengthened, as is the case in Germany.
Not least because a constitutional court can grasp the core of each branch of law, which has enabled the British Supreme Court to issue decisions of principle on platforms, in which competition law has played its part and fits in with all the other centers of the other branches of law on which the court can rely.
Moreover, and each author has constantly referred to this, the Court of Justice constitutes a sort of Supreme Court in the European Union, especially since it guards and builds the common law of the Union.
In fact, the Court of Justice, which for a long time was concerned only with competitive performance, now expresses that Community level competition is an instrument for building a common space for human beings, stating above all that the Union is based on the Rule of Law.
It was the Court of Justice that invented the foundations of the new Data Law, which was often mentioned, and reinvented the "law of markets" from the subjective rights it imposed, such as the "right to be forgotten", which was taken up by this famous Regulation of 2016.
This is what the President of the Court of Justice wrote in 2019 about the role of this Court on the future of Compliance Law, at the service not only of competitive innovation but also of European citizens.
The alliance between citizens and companies will perhaps take place thanks to the function of the judge: the exemplary function of the Court of Justice shows its profound renewal, and its contribution to the new state that we can hope for in Competition Law.
It is undoubtedly this judge who could make European competition law the expression of a European legal tradition that leads us, the citizens, towards a sovereign Europe.
In any case, it is this hope that listening to all these fascinating speeches has sparked in me and for which I must present to each and every one of you my deepest thanks.