International Cooperation on Competition: Myth, Reality and Perspective

• Date: 01 December 2003
• Author: Frederic Jenny
• DOI: 10.1177/0003603X0304800405
• Published date: 01 December 2003
• Subject Matter: Symposium: Global Antitrust Law and PolicyPart VI: Competition Policy Cooperation: Across the Atlantic and beyond

The Antitrust BulietinlWinter 2003

International cooperation on

competition: myth, reality and

perspective

BY FREDERIC JENNY*

973

Over

the

last

decade,

international

cooperation

between

national

competition

authorities

has

become

one

of

the hottest

topics

in the

world

of

antitrust.

Tools

for

cooperation

have

been

developed

and

there

is

clear

evidence

that

national

antitrust

agencies

consider

international

cooperation

to be

cru-

cially

important

for

their

agencies

and

are

ready

to

devote

increasingly

important

resources

to this activity.

This article looks at these developments and tries to put them

in context. Iinvestigate both the causes

of

successes and possible

failures of cooperation in the area

of

competition law and policy

and

the

reasons

antitrust

enforcers

claim

that

international

cooperation contributes so importantly to substantial convergence

in

the

absence

of

clear

evidence

that

this

is

true.

Particular

attention is given to the transatlantic cooperation between the U.S.

and the European Community. I also analyze the consequences

of

the globalization

of

markets and

of

the proliferation

of

national

competition laws on the role and organization of cooperation in the

antitrust area.

*Professor E.S.S.E.C., France; Vice President, Conseil de la Con-

currence.

© 2004 by Federal Legal Publications. Inc.

974

The antitrust bulletin

I.

Cooperation

One aspect of cooperation in the field of competition is related to

law enforcement issues but there

IS

also a fair amount of cooperation

on broader issues such as competition advocacy or the proper design

of

competition laws and competition law enforcement institutions.

Case-specific cooperation (through consultations or exchange of

confidential or nonconfidential information, joint investigation etc.) is

certainly a crucially important part of cooperation regardingcompetition

law enforcement. Other noncase-specific forms of cooperation regarding

competition law enforcement are exchanges of experiences among

competition officials about substantive issues in antitrust law, the

definition of best practices, the development of tools of cooperation

(such as positive or negative comities), the adoption of recommendations

pertaining to specific topics of law enforcement (such as the adoption of

the Organization for Economic Cooperation and Development (OECD)

hard-core cartel recommendation), peer reviews etc.

Besides cooperation (whether case specific or noncase-specific)

on matters related to the enforcement of antitrust laws, other forms of

cooperation on competition matters developed rapidly during the

1980s and the 1990s. Three types of forces led competition authorities

to consult one another, to exchange experiences and to try whenever

possible to define best practices in the broad areas of competition

advocacy and regulatory reforms.

First, in many countries, competition authorities were faced with a

common challenge. Because they tend to be independent institutions

(independent

from

both the

executive

branch

and the

business

community)

and

because

this

independence

is, in

most

cases,

guaranteed

by

provisions

in

the

antitrust

law

(or

in

the

law

establishing the competition institutions), competition policy officials

in developed countries usually do not have the possibility to intervene

directly in the executive process. This did not create a particular

problem as long as antitrust or competition law enforcement played a

relatively minor role in economic policy and as long as the legal

environment of business was fairly stable. However, things started to

change drastically during the late 1980s and the 1990s.