The German Federal Cartel Office hosted the “International Conference on Competition” last week. But this is not a conference report. Instead, it is a reflection on the overarching theme(s) I sensed across speeches, panels and those discussions over coffee and dinner.
The antitrust community seems to be pulling in opposite directions. While most appear to agree on what “good” outcomes would be, opinions on how to get there remain woolly.
However, before diving into the debate, and in that way this post starts with a conference de-brief, the organisation of the International Conference on Competition (IKK) was once again formidable. The IKK only takes place every two years and the Federal Cartel Office (FCO) pulls off a world-class event without sponsors or exorbitant ticket prices. Relatively few external lawyers are allowed to attend, which makes for a rare feeling of being part of a minority at such an event.
The current debate
The IKK served as a “spark” for this post because it captured a number of the different streams currently defining the European antitrust debate:
- Competitiveness: There seems to be a consensus that Europe should become more competitive, innovative, and investment-friendly.
- “Big business” push: Representatives of established companies are lobbying for less regulation and a leaner application of the rules, including with regard to merger control.
- Academic pushback: (Many) Scholars remain sceptical towards loosening the rules, and point to innovation usually coming from smaller players rather than incumbents.
- Big tech focus: Regulating big tech is still high on the agenda and a much-discussed topic. The conference concluded with a “Power Talk” by Barry C. Lynn (Open Markets Institute) and Rupprecht Podszun (University of Duesseldorf). Both are very outspoken against big tech, and placing this part as the closing act highlights how central the “big tech” and “market power” narrative has become in the European debate.
In his own conference de-brief, Rupprecht Podszun concludes with “Will we preserve an economy that delivers for all, is driven by competition, preserves freedom, and is governed by a rule-based order? We saw the collapse of public international law. We do not want to see the collapse of antitrust law. Eleanor Fox called us to the barricades: “We have to fight back!”
Shifting the focus: From big theory to day-to-day reality
All of the issues listed above are essential and worth debating. But I wonder if the European discourse is missing a beat. Beyond the headlines of “business-friendliness” and revised merger guidelines, is there room for a more pragmatic focus on the day-to-day application of antitrust?
Here are a few thoughts:
- Enforcement vs. politics: The business world’s plea for less regulation and more investment is ultimately for politicians to solve and not for the antitrust community.
- Burden of process: When it comes to enforcement, it is important to distinguish between broad economic policy and the specific advocacy of market incumbents. Still, the burden of regulation can also mean having to deal with long proceedings and an ever-changing regulatory environment. So, would it be worth discussing how proceedings can be streamlined without changing the rules? How regulators can be empowered to be pragmatic when it comes to certain topics? How companies and practitioners can help with that?
- Stability: Does the debate need to pivot so quickly towards creating new rules or changing existing ones? Perhaps we would benefit more from considering which existing rules are redundant and focusing on debating the practical application of the remaining ones?
- Big tech fatigue: Given the finite resources of regulators, how should the balance be struck between big tech cases and the “needs” of other sectors? Most acknowledge that some big tech regulation is warranted and that practice will develop. But apart from that, are we actually “moving the needle” for the European economy by making this the central pillar of many discussions?
- Cooperation: How can and should regulators maintain international cooperation at a time when US regulators – as a recorded message shown during the conference apparently suggested – seem to put
verylittle emphasis on global alignment?
These would of course not be “trendy” topics and certainly not novel ones. Yet, in times of turmoil, might we benefit from returning to “basics” and checking how antitrust might help improve the economic landscape with small tweaks instead of large leaps?
A final note
To be very clear: These reflections are in no way to be read as criticism of the IKK, the topics the FCO put on the agenda and/or the panellists. In fact, the opposite is true: The event was a success precisely because it “provoked” this kind of thinking. So, this post is just a humble contribution to a field that is currently being pulled in many different directions at once.
Picture by Rinck Content Studio on Unsplash
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