Convergence and Divergence within the EU's Supranational Competition Law Framework

Rodger, Barry; Lucey, Mary Catherine

doi:10.1017/9781108182058.010

Cited by 3 publications

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“…Soft law initiatives are key planks of the ICN’s operation in the direction of addressing divergences among antitrust regimes. This is noteworthy because there is considerable contention in the literature as regards the topics of divergence and convergence across antitrust regimes (Doern and Wilks, 1996; Gal, 2009; Fox and Trebilcock, 2013; Gerber, 2010; Lucey, 2017; Rodger and Lucey, 2018).…”

Section: International Competition Networkmentioning

confidence: 99%

In the absence of global antitrust law: looking to “bricks and mortar” institutions and agency networks

Lucey

2021

JITLP

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Purpose This paper aims to draw attention to a broad range of experimental institutional initiatives which operate in the absence of a global antitrust regime. The purpose of this paper is to offer food for thought to scholars in other fields of international trade law facing challenges from divergent national regimes. Design/methodology/approach Taking inspiration from political science literature on institutions, this paper crafts a broad analytical lens which captures various organisational forms (including networks), codes (including soft law) and culture (including epistemic communities). The strength and shortcomings of traditional “bricks and mortar” institutions such as the European Union (EU) and General Agreement Tariffs and Trade/World Trade Organisation are first examined. Then, the innovative global network of International Competition Network (ICN) is analysed. Findings It highlights the value of the global antitrust epistemic community in providing a conducive environment for extensive recourse to “soft law”. Examples from the EU and the ICN include measures which find expression in enforcement tools and networks. These initiatives can be seen as experimental responses to the challenges of divergent national antitrust regimes. Research limitations/implications It is desktop research rather than empirical field work. Practical implications To raise awareness outside the antitrust scholarly community of the variety of experimental institutional initiatives which have evolved, often on a soft law basis, in response to the challenges experienced by national enforcement agencies and businesses operating in the absence of a global antitrust regime. Originality/value It offers some personal reflections on the ICN from the author’s experience as a non-governmental advisor. It draws attention to the ICN’s underappreciated range of educational materials which are freely available on its website to everyone. It submits that the ICN template offers interesting ideas for other fields of international trade law where a global regime is unrealisable. The ICN is a voluntary virtual network of agencies collaborating to agree ways to reduce clashes among national regimes. Its goal of voluntary convergence is portrayed as standardisation rather than as absolute congruence. Even if standardisation of norms/processes is too ambitious a goal in other fields of international trade law, the ICN model still offers inspiration as an epistemic community within an inclusive and dynamic forum for encouraging debate and creating a culture of learning opportunities where familiarity and trust is fostered.

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Section: International Competition Networkmentioning

confidence: 99%

In the absence of global antitrust law: looking to “bricks and mortar” institutions and agency networks

Lucey

2021

JITLP

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“…For reasons of space, the inclination towards greater convergence of competition law enforcement models across the globe cannot be detailed here (Fox and Trebilcock, 2013; Gerber, 2010; Elhauge and Geradin, 2007; Doern and Wilks, 1996; Rodger and Lucey, 2018; Lucey, 2017a, 2017b; Cheng, 2012; Gal, 2009). Instead, the focus confines itself to exploring the emergence, operation and evolution of the judge-centred enforcement models enacted in each of these Common Law jurisdictions with a view to highlighting some similarities which render these models atypical from a global perspective.…”

Section: Introductionmentioning

confidence: 99%

Competition law enforcement in Hong Kong SAR and in Ireland: similar and atypical

Lucey

2019

JITLP

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Purpose This paper aims to understand the emergence, operation and evolution of judge-centred models for the enforcement of competition law in Ireland and in Hong Kong SAR. The public enforcement model in Hong Kong chimes with the Irish regime where competence to adjudicate on competition law violations and to impose sanctions is intentionally reserved exclusively to judges. This design choice renders the Irish and Hong Kong regimes both similar to each other and atypical on the global stage, where in many jurisdictions an administrative competition agency investigates suspected infringements, makes determinations of infringements and may penalise infringers. Design/methodology/approach This paper starts by detailing the current competition law architecture in each jurisdiction. Then, it examines closely the discourse (expressed in consultations, experts’ reports and Parliamentary documents) in the lengthy period preceding their introduction. This approach aims, firstly, to understand why judicial models were chosen over more familiar administrative ones and, secondly, to unearth any similar concerns which had a bearing on the choice of atypical design. Next, it analyses some implications of the judicial model in operation for, firstly, parties; secondly, the administrative competition agencies; and, thirdly, the evolution of competition law. Findings It finds the existence of similar concerns surrounding due process/separation of power arose in each jurisdiction. Other similar strands include a sluggish political appetite which delayed reform. Each jurisdiction actively sought to inform itself about international experience but did not feel obliged to copy the enforcement dimension even where substantive prohibitions were persuasive. Research limitations/implications It shines a light on the independent response by two small Common Law jurisdictions, which does not converge with popular administrative international models of competition law enforcement. Practical implications It is hoped that the decades-long experience in Ireland may interest those involved in Hong Kong competition law, which is at a comparatively fledgling stage of development. Originality/value This is an original research and appears to be the first paper exploring the atypical approaches taken in Hong Kong SAR and Ireland to designing locally suited regimes for the enforcement of competition law.

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(Dis)Respect for Fundamental Rights in EU Competition Law Enforcement Proceedings Before National Authorities: In What Way Does Article 3 of the ECN+ Directive Prove To Be too Open-Ended?

Piszcz

Petr

2023

IIC

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The ECN+ Directive gives national competition authorities more power in order to make them more effective enforcers of EU competition law. However, Art. 3 of the ECN+ Directive counterbalances this by requiring that appropriate safeguards are in place to ensure that undertakings’ fundamental rights are respected in EU competition law enforcement proceedings. The aim of this article is to critically reflect on the requirements of the ECN+ Directive with respect to safeguards for the fundamental rights that fall within the ambit of Art. 3 of the ECN+ Directive and the implementation of those requirements by EU Member States. To this end, the article first provides an overview of this provision. Second, by means of an overview of national laws, it analyses whether the very general Art. 3 is capable of harmonising the safeguards in question. A set of comparative examples from EU Member States, including in particular examples Poland and the Czech Republic, shows how the wording of Art. 3 invites national legislatures to misuse the potential of this provision. This results in undertakings continuing to face disparity in the extent to which their fundamental rights are protected in competition law enforcement proceedings before the various national competition authorities.

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Convergence and Divergence within the EU's Supranational Competition Law Framework

Cited by 3 publications

References 0 publications

In the absence of global antitrust law: looking to “bricks and mortar” institutions and agency networks

In the absence of global antitrust law: looking to “bricks and mortar” institutions and agency networks

Competition law enforcement in Hong Kong SAR and in Ireland: similar and atypical

(Dis)Respect for Fundamental Rights in EU Competition Law Enforcement Proceedings Before National Authorities: In What Way Does Article 3 of the ECN+ Directive Prove To Be too Open-Ended?

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