CLES@UCL launches UCL/White and Case Autumn Conference and holds Competition Law and Policy events

On Wednesday 7th November, 2018, leading lawyers, economists and academics came together in Brussels to discuss competition law at the first UCL-White & Case Autumn Conference.

The UCL/White & Case annual Brussels event aims to offer a new forum for real 'outside the box' thinking about competition law and policy in Europe. The conference is structured in such as way as to promote dialectics and the opposition between different approaches (mainstream and heterodox) in competition law. We believe that such dialectic approach is needed in order to imagine and describe this "next generation competition law" that is emerging. For a presentation of the vision for this new conference series, see the interview of Dr. Assimakis Komninos from White and Case and Professor Ioannis Lianos from UCL who initiated the series.

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The conference provided a wide-ranging agenda and a forum for unconventional thinking about competition law and policy. To promote interaction between those offering mainstream and heterodox views, each panel included a polemicist or two. This ‘polémique’ design led to robust debate and certainly tested the stewardship of our chairs.

The conference’s first panel concerned extending the concept of abuse to pursue a more populist agenda. White & Case’s Assimakis Komninos warned of the increasing pressure faced by competition authorities to deal with issues unrelated to competitive structure. Dr Komninos urged Article 102 ‘be put in the deep freezer’ and used for consumer welfare purposes only. In contrast, Ioannis Lianos, Chair of Global Competition Law and Public Policy at UCL, stated Article 102 to be a living concept and should reflect developments in the economy, including digitalisation. Professor Lianos suggested there is too much focus on horizontal power and inefficiency, and insufficient attention paid to vertical power, value capture, and broader societal issues such as stability and fairness. Dr Miguel de la Mano offered a in-depth analysis of exclusionary practices under EU competition law, in particular following Intel, while Dr. Bojana Ignatovic focused her presentation on the analysis of exploitative abuses, in particular excessive pricing, thus providing a critical overview of the most relevant types of abuse of a dominant position.

The second panel addressed the implications of the data-driven economy for merger control and innovation theories of harm. The Chief Economist of the European Commission’s Directorate General for Competition, Tommaso Valletti, provided an overview of the economic thinking behind recent data mergers or mergers involving innovation. He emphasised the role of privacy as a parameter of competition, and also discussed possible theories of harm to innovation, in particular unilateral effects. Dr. Pierre Regibeau explored the issue of innovation theories of harm and innovation efficiencies and put forward an interesting typology systematising this area. Dr. Aleksandra Boutin provided an in-depth analysis of the recent data mergers and the issues that these raised. Dr. Cristina Cafarra highlighted the importance of innovation concerns and potential competition in the current context of the digital economy and explored the challenges this may set for competition authorities. The legal contours of this increasing interest on innovation was thoroughly commented upon by Professor Pablo Ibáñez Colomo who focused on the way these can be integrated in the current legal framework.

Speakers in the third panel, including UCL Lecturer in Competition Law and Policy Dr Deni Mantzari, addressed regulation and competition law in an era of State capitalism. Kai Struckmann explored the dual role of the State as policy maker and business actor, in particular focusing on the application of the market economy operator principle. Frédéric Jenny, Chairman of the OECD Competition Committee spoke on the place of competition law in an increasingly protectionist world. Professor Jenny recommended competition authorities advocate for increased labour market flexibility to alleviate pains associated with globalisation and increased competitiveness. Furthermore, Professor Jenny said authorities should prioritise situations of clear unfairness and noted the consumer welfare standard makes little sense if fairness considerations are to be included. Damien Gerard commented extensively on the application of Article 106 to state monopolies and more generally the competition law contours of State action, while Dr. Deni Mantzari focused her intervention on the interaction of utilities law and competition law, in particular as the State pursues in these markets wider objectives, such as the protection of vulnerable consumers.

The final panel provided an absorbing discussion on what competition law may look like by 2028. Dr Cristina Caffarra, Head of Charles River Associates’ European Competition Practice, urged there to be no delay in implementing an approach suitable for digital markets. Professor Anne-Lise Sibony focused her intervention on the behavioural economics challenge for the role of competition law in a digital economy, while Benoît Durand put emphasis on the uncertainty competition authorities face in this fast moving world where technology disruption makes it quite difficult for competition authorities to always get it right when deciding to intervene. As Director of the UCL Centre for Law, Economics and Society, Professor Lianos was granted the last word by chair Sir Philip Lowe and called on the competition law community to embrace and adapt to the complexity of the modern economy. Lianos focused his intervention on three characteristics of the digital economy and the challenges these set for competition law enforcement: futurity, cybernetics and personalisation.

The materials for this event can be accessed at the conference website: https://www.ucl.ac.uk/laws/events/2018/nov/ucl-white-case-brussels-autumn-competition-law-conference

Following up the same broader theme, the CLES@UCL hosted a groundbreaking event on December 14^th, 2018, on the interaction of digital platforms and media with the contribution of leading scholars and policy makers. The event will be summarised in a separate press release.

Part of this summary was prepared by Andrew McLean (PhD canadidate, UCL).