8th Competition Law Update: Competition Law developments within and beyond the EU

The 8th Competition Law Update featured speeches by acknowledged Competition Law experts on the subject of “Recent Developments in Competition Law within and beyond the EU”.

The four speeches (from Switzerland, the EU Commission, the UK and Russia) at the 8th Competition Law Update shared a clear message: the developments in international Competition Law are all moving in the same direction – convergence.

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Changes in Switzerland
Prof. Patrick Krauskopf (Head of the Centre for Competition Law and Trade Law) gave his analysis of the particular significance of the landmark Federal Supreme Court decision in the Gaba/Elmex case. This ruling has since been confirmed by the Federal Supreme Court decisions in the BMW and Baubeschläge cases. Switzerland has now become a de facto member of the group of countries which have imposed bans per se. A further notable item is the appointment of Prof. Heinemann as the new president of the Competition Commission (WEKO).

“More or less divergence in the EU”
Eddy De Smitjer (Head of the International Relations Department at DG Competition and the EU Commission), discussed the question of whether EU and non-EU countries should develop closer or looser ties with one another. For him, the answer is quite clear: in a world which is becoming ever more connected on a global basis, a more intensive collaboration between the antitrust authorities and a far-reaching harmonisation of the regulatory framework are essential. The EU is already working towards these objectives, with regular meetings held between different EU organisations. Examples of specific and successful steps undertaken in this context include the sharing of best practices, as well as international agreements or collaborations (ICN, ECN).

The “boiling frog syndrome” in the UK
Giving a description of the current situation in the wake of the Brexit decision is anything but easy, even for Phil Evans from the Investigations Division of the Competition and Markets Authority (CMA) in the UK. He classified the current political situation and its ongoing challenges as the key issue. The overall mood can be compared to the “boiling frog syndrome”: If change happens quickly it produces an immediate reaction. But if changes come slowly and incrementally, the implications are only recognised when it is already too late. Phil Evans believes that the UK’s exit from the EU will not lead to major changes to UK Competition Law, he sees no reason to fundamentally change what is essentially a sound, well-functioning system.

Current developments in Russia
Andrey Kashevarov, Vice President of the Federal Antimonopoly Service (FAS) in Russia, gave some insights into Russian Competition Law. The FAS is the regulatory authority for this law, which has seen significant modernisation. As part of the ongoing process of harmonisation with international standards, topics such as agreements between competitors and market abuse are now in the spotlight, after the Russian antitrust regulator spent many years focussing on state aid, or subsidies, and market intervention issues. The high number of annual complaints filed with the FAS (44,500) is impressive. However, only around 10% of these cases result in an investigation being launched. This is mainly due to the established FAS practice of initially issuing a warning to the companies concerned.

A number of issues were brought up during the panel discussion held afterwards, including the question of why so much focus is put on harmonisation, rather than encouraging the “competition of ideas”. In this context, the speakers outlined what they expect from a modern iteration of Competition Law, including for example the demand for a “4th pillar” of Competition Law, namely state aid. Following the event, the guests enjoyed a pleasant dinner at Brasserie Lipp to round off the evening.

The theme of the next Competition Law Update is “The Inhouse Perspective” and is scheduled for 25 April 2018 at Au Premier in Zürich.

For further Information: Patrick Krauskopf, Centre for Competition Law and Trade Law

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