Interview with Johannes Laitenberger – NFA 2016 – Paris, June 13

Interview with Johannes Laitenberger – NFA 2016 – Paris, June 13

The EU has long been committed to increasing cooperation on competition policies with the US. What do you expect will be the scope of the TTIP provisions regarding competition? Can you tell us whether they will cover all the main areas of competition law, including anti-competitive agreements, abuse of dominance, merger control, State aid and SOEs?
The EU and the US are long standing close trading partners. In fact, they are each other’s main trading partners. Both rely also on advanced competition regimes with mature and trusted enforcement authorities in charge. Against this background, the aim of the TTIP provisions regarding competition is to confirm the importance of competition policy and reinforce our shared commitment to a robust, transparent and non-discriminatory enforcement of competition laws. This could send a strong message to the rest of the world and set the standard for other bilateral and multilateral agreements.
From the EU side, in addition to antitrust (covering anticompetitive agreements and abuses of dominance) and mergers provisions, we would like the TTIP to include provisions on the application of competition rules on matters related to State Owned Enterprises (SOEs) and subsidies. The inclusion would give both sides the opportunity to lead by example and show that multilateral and bilateral trade and investment obligations should not to be circumvented through companies’ or governments’ anti-competitive practices, which undermine confidence in international trade and investment rules.
These proposals on SOEs and subsidies will not undermine existing rules on public services in the internal market and a specific carve-out is foreseen for certain sectors such as audiovisual, social services, health, education, water.

Obviously, the outcome of the negotiations will ultimately depend on both Parties.

The Commission already cooperates extensively with US antitrust agencies under the 1991 and 1998 agreements, and the 2011 EU/US Best Practices on Cooperation in Merger Investigations. Against this background, what will be the added value from the competition provisions in TTIP?
Both the EU and the US proposals for a TTIP Competition Chapter expressly refer to the 1991 and 1998 cooperation agreements between the European Commission and the US antitrust authorities as a basis on which our respective competition authorities can continue to develop their excellent cooperation record. However, the scope of the TTIP Competition Chapter goes beyond cooperation among competition agencies. This is precisely where its added value lies. The aim is to agree on a set of shared principles that underpin effective competition enforcement as a basis for extending and strengthening international cooperation.
Dispute settlement has been at the heart of recent controversies involving TTIP and several other Free Trade Agreements (FTAs). Yet, competition provisions in FTAs are generally not subject to dispute resolution. Do you think it would be desirable – and feasible – to introduce dispute resolution mechanism for competition provisions in future FTAs?
The Free Trade Agreements (FTAs) that the EU has concluded so far have excluded competition policy enforcement from Dispute Settlement while provisions on subsidies have not been excluded.
The reasons behind this dual approach lay with the European Courts’ exclusive competence to review the European Commission’s antitrust and merger decisions, on the one hand, and the dispute settlement arrangements that already exist in the context of the WTO Agreement on Subsidies and Countervailing Measures, on the other hand.
To date, attempts to incorporate competition law into the multilateral trade system have not been successful. That said, the EU has described TTIP as “a model for global policies to promote free and fair competition”. Can we expect the EU to promote a similar approach on competition at a multilateral level?
There is no straightforward answer to this question. It is true that past attempts to incorporate competition law into the WTO have been opposed by a substantial part of its members. On this experience, it is hard to predict whether there is enough appetite worldwide for agreements of this nature today. Also, a more in-depth reflection about the need for such agreements should be conducted. The European Commission will do its part in its efforts to promote sound and effective competition enforcement in the context of Free Trade Agreements and other Trade and Investment Agreements as well as in existing multilateral forums such as the OECD and the International Competition Network.

 

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