Articles Posted in European Union

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Author: Luis Blanquez

Luis Blanquez is a European Competition Attorney that works with Bona Law.

WHAT IS AN ANTITRUST COMPLIANCE PROGRAM?

An antitrust compliance program is an internal business policy designed by a company to educate directors and employees to avoid risks of anticompetitive conduct.

Companies that conspire with their competitors to fix prices, share markets, allocate customers, production or output limitation; have historically faced severe fines from antitrust enforcement all over the world.

Companies articulating such programs are in the best position to detect and report the existence of unlawful anticompetitive activities, and if necessary, be the first ones to secure corporate leniency from antitrust authorities.  This allows them to avoid substantial fines, and in some jurisdictions, such as the US and the UK, even criminal charges.

But not every program ensures compliance.  A successful compliance program must alert and educate sales force; issue-spot risks; encourage reporting of anticompetitive issues, and deter risky conduct.

Over the years, antitrust authorities all over the world have published some general guidance creating and managing compliance programs.  Even though there are differences between jurisdictions, all of them seem to have the following anchor points in common:

  1. No “one size fits all” model: You must tailor your compliance program.

Effective compliance programs require companies to tailor their internal policies according to their particular situation.

A generic out-of-the-box compliance program is not likely to be effective.  It is more important that the company conducts an assessment of the particular risk areas involved in its day-to-day business activities, with a specific focus on the structure and previous history of the industry.

Interaction of sales people with other competitors, with close attention to trade association meetings, is also an important point to consider.  To illustrate, employees with access to pricing information and business plans are more likely to meet their counterparts from other companies in trade association reunions or industry events.

  1. Development of training programs to educate directors and employees.

A company should ensure antitrust compliance training for all executives, managers and employees, especially those with sales and pricing responsibilities.

Genuinely effective compliance requires that companies apply the antitrust policy and training program to their entire organizational structure, preferably in writing.  It may take the form of a manual and must be plainly worded in all the working languages of the company, so everyone understands it.  The antitrust policy must contain a general description of antitrust law and its purpose, explaining the way the company enforces it, along with highlights of the potential costs of non-compliance.

An effective way to implement an antitrust policy is through a list of “Don’ts”, including illegal conduct such as price-fixing agreements, the exchange of future pricing information, or allocation of production quotas, among other conduct.

You might complement the forbidden conduct with a list of “Red Flags” to identify situations in which antitrust risks may arise (i.e. sales people attending trade associations or industry events).

You might also add a list of “Do’s” because employees are often more receptive to what they can do, rather than what they cannot do.

Finally, companies and their employees should document their antitrust compliance training in writing. This assures that employees take compliance efforts seriously and that antitrust enforcers understand that the company does so too.

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Author: Luis Blanquez

Luis Blanquez is an antitrust attorney at Bona Law with fifteen years of competition experience in different jurisdictions within the European Union such as Spain, France, Belgium and the UK. He lives in San Diego and is in the process of becoming a member of the California bar. He will be one of the very few attorneys in the world with significant actual experience in both US and EU competition law.

You can read our article about the elements for monopolization under U.S. antitrust law here. We also wrote about monopolization on the Bona Law website.

Article 102 TFUE

In the European Union, the Directorate General for Competition of the European Commission (“the Commission”) together with the national competition authorities, directly enforces EU competition rules, Articles 101-109 of the Treaty on the Functioning of the European Union (TFEU).

Article 102 TFEU prohibits abusive conduct by companies that have a dominant position in a particular market.

Here is the language:

Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of  consumers; (c) applying  dissimilar  conditions  to  equivalent  transactions  with  other  trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to  commercial usage, have no connection with the subject of such contracts.

First, article 102 TFEU applies to “undertakings,” which is defined by EU case law as including every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. (C-41/90 Höfner and Elsner v Macrotron [1991] ECR I-1979).

Natural persons, legal persons, and even states are included in the interpretation of undertakings. (So, as in the United States, governments in Europe might violate the competition laws).

Second, to qualify as an undertaking, the entity must be also engaged in an economic activity, i.e. offering goods and/or services within a relevant market.

Third, to fit within Article 102 TFUE’s prohibition, the conduct must have a minimum level of cross-border effect between member states within the EU.

The concept of dominance under EU antitrust rules

As explained above, article 102 TFEU prohibits abusive conduct by companies that have a dominant position in a particular market.

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The Antitrust Paradox by Robert Bork

When you are an antitrust lawyer, an exciting day each quarter is the arrival of a fresh issue of the Antitrust Law Journal. I’ve previewed these issues in the past, here and here. Once again, the Antitrust Law Journal has arrived and it looks like a great one.

This issue includes an extensive symposium entitled “Robert Bork and Antitrust Policy.” A superstar collection of authors—including Herbert Hovenkamp, Richard Epstein, William E. Kovacic, Judge Douglas H. Ginsburg and many others—discuss Bork’s contribution to antitrust law. And my fellow summer associate from Gibson Dunn & Crutcher (from more than a few years ago), Adam J. Di Vincenzo, wrote the Editor’s Note.

Outside of the antitrust world, Robert Bork is known primarily for his Senate confirmation hearings after his Supreme Court nomination. For those of you that weren’t paying attention during the 1980s, Bork arrived at the Senate hearings as an exceptionally well-qualified nominee by President Ronald Reagan to the US Supreme Court. But for ideological reasons, they rejected him, beginning the phrase and culture of “Borking” a judicial nominee that, although qualified, may not satisfy political litmus tests. Since that time, of course, judicial nominations have, unfortunately, devolved into ideological warfare.

If you were around during the 1970s, you might also remember that Robert Bork was the acting head of the Department of Justice that fired Special Prosecutor Archibald Cox during the Saturday Night Massacre, arising out of Watergate near end of the Nixon Administration.

But—whatever you think of Robert Bork politically—he is a candidate for the antitrust-law Mount Rushmore. His most famous antitrust contribution is a book called “The Antitrust Paradox: A Policy at War with Itself.” As you can tell from the title, it was written during a time of flux and uncertainty in antitrust (1978).

You can read the outstanding articles in the Antitrust Law Journal for more detail, but in a nutshell, Bork’s major contribution with this book was to help set the goals of antitrust law toward consumer welfare. This more narrow approach contrasted with common temptations to use antitrust law as social policy to, for example, protect certain businesses from large companies. Or to use antitrust law as a means to attack “bigness” for other reasons.

Bork was highly influential in persuading antitrust participants that antitrust is really only concerned with activity that harms competition, which is the premise of the antitrust injury requirement. There is, of course, great debate over what, exactly, is consumer welfare and even whether total welfare is a better goal. And his emphasis on using economics to develop antitrust doctrine is mainstream, but there is plenty of room for debate within that framework.

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