EC Competition Commissioner Discusses New Policy Initiatives

Competition Commissioner Neelie Kroes, in two recent speeches in the United States, outlined several potential EC policy shifts that could result in European competition enforcement more closely resembling antitrust enforcement in the U.S.

In a speech before the Harvard Club on September 22, Kroes discussed the development of private enforcement of competition laws in Europe. Kroes noted that private enforcement brings clear benefits by providing an additional deterrent to unlawful behavior, promoting competition on the merits, and allowing victims of illegal behavior to seek compensation for their losses. Kroes stated that the EC wants to stimulate public debate about private enforcement and is preparing a discussion paper to establish the platform for that debate. Kroes emphasized that the EC is seeking to design a system that protects consumers without imposing a disproportional burden on defendants, noting specifically the possible use of collective action to achieve that goal. The Green Paper, which the EC hopes to have available by the end of the year, will cover additional topics relating to private enforcement, such as access to evidence, damages calculation, and the cost of proceedings.

The next day, before the Fordham Corporate Law Institute, Kroes discussed efforts to improve the enforcement of Article 82 of the EC Treaty, which deals with abuse of monopoly ("dominant firm") power and historically has been the subject of more aggressive enforcement in the EU. Kroes spoke about the importance of establishing sound theories for enforcement, which should focus on behavior that has actual or likely anticompetitive effects. Kroes noted that the primary objective of Article 82 is to protect consumers, which requires that enforcement priority be given to practices that exclude competitors. Finally, Kroes discussed whether an efficiency defense should be permitted under Article 82 and concluded that such a defense should be available, with firms bearing the burden of proving that (1) the efficiencies are likely to be realized; (2) the conduct is necessary to achieve the efficiencies; and (3) the efficiencies outweigh the negative effects of the challenged conduct.

A copy of each speech is available at the link below.

9/22 speech

9/23 speech

For additional information about any of the information in this Antitrust Update, please contact Toby G. Singer, leader of the Health Care Antitrust Practice.

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