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Today’s speech by Guillaume Loriot — the EC’s Deputy
Director General for Mergers — is worth a read. Without agreeing
necessarily with all of the enforcement decisions described
therein, it is striking how much the speech reminds me of those
given by US antitrust officials back in the 1990s, 2000s, and much
of the 2010s.
For most of that span, you could count on leaders of the US
Federal Trade Commission and Department of Justice’s Antitrust
Division — regardless of administration — to give speeches and
publish articles evangelizing the US approach to merger policy to
regulators in Europe, Asia, and the rest of the world. The rule of
law; predictability in the process; tailoring remedies, including
behavioral ones, to preserve competition as a way of allowing
mergers that would unlock important efficiencies; a laser-like
focus on the usefulness of the consumer welfare standard; and an
avoidance of important but unrelated social issues such as
employment levels and environmental issues.
And it worked! To be sure, the European Commission’s DG Comp
sometimes adopted competition theories that were broader than those
typically advanced by the US agencies. (Dow/DuPont comes to mind.
And the EC’s Form CO is no picnic compared to the simplicity of
an HSR Form.) However, the EC and many other jurisdictions observed
and adopted the basic merger review ideas that the US agencies had
been advancing.
The current US enforcement posture — of course — has shifted
significantly in recent years. Rejection of the consumer welfare
standard has become a shibboleth of sorts. And any merger that is
abandoned for any reason is deemed a “win for consumers”.
(Or, the only good deal is a dead deal.)
Competition policy has become an issue of more general interest
and concern to the citizenry in many countries (which, as an
antitrust lawyer, I think is a fantastic development) and
politicians and policymakers understandably wish to engage.
Ideally, though, the balance is towards more policymaking and less
politics.
Loriot’s remarks reflect an approach that embraces the
consumer welfare standard; is built on “examining the facts
and evidence of each specific case; taking a reasoned decision one
way or another, under a transparent process, as required by our
framework”; and, which endorses accepting remedies to allow
consumers to benefit from the pro-competitive efforts of companies
to become more efficient and capable competitors. There is room for
disagreement about how any agency, including DG Comp, lives up to
those ideals. But they are good ideals.
We know…that unfettered in-country consolidation within Member
States is not the answer to make up for the limited geographic
scope of national markets. It will neither lead to better prices
for customers nor to greater investment by firms. On the contrary
evidence shows that it is the presence of competition that
encourages investment, rather than hinders it.
That is why the Commission continues to be committed to ensuring
competitive telecoms markets across the EEA in the interest of all
players, and in the interest of fair prices, quality and choice for
consumers, in line with the broad consumer welfare standard we have
always taken in the EU.
…[A]nd we remain dedicated to examining the facts and evidence
of each specific case; taking a reasoned decision one way or
another, under a transparent process, as required by our
framework.
competition-policy.ec.europa.eu/…
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