A 'Global' Competition Law: The Best Way to Tackle Clashes between EU Law and the Law of Third Countries on the Application of their Respective Competition Laws?

• Author: Neil Murphy
• Position: BA (DCU), LL.M. (Edin), Diploma in Legal Studies Candidate, The Honorable Society of King's Inns. The author would like to thank Dr Robert Lane, University of Edinburgh Law School, for his comments on earlier drafts of this article. Any errors or omissions are the author's own
• Pages: 66-86

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A ‘GLOBAL’ COMPETITION LAW: THE BEST WAY TO TACKLE

CLASHES BETWEEN EU LAW AND THE LAW OF THIRD COUNTRIES

ON THE APPLICATION OF THEIR RESPECTIVE COMPETITION

LAWS?

Neil Murphy*

A INTRODUCTION

The growing process of globalisation stimulates business activity to expand and further operate

at an international level. Therefore, competition authorities in the future will have to further align

their enforcement activities so as to fight anticompetitive practices with an international

dimension. This will entail a closer form of interaction, more enhanced cooperation and

significant modification of the existing systems.1

Recently there has been a significant increase in the global recognition of the importance and

benefit of competition law to both private and commercial conduct. Over 120 jurisdictions have

now adopted a system of competition law with an increasing number of others currently in the

process of developing some competition law framework.2 Based on the premise that competition

has the ability to increase a market’s allocated productive and dynamic efficiencies, these

jurisdictions have an interest in regulating anti-competitive behaviour. There is also the added

benefit of offering consumers better prices, services and choices and improving economic

welfare. It is safe to say that most competition law regimes share common characteristics and

features, including prohibitions on certain types of behaviour such as horizontal agreements

between firms, vertical restraints between firms operating at different levels of the market and

excessive aggregation of market power.3 Coupled with these common features and

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* BA (DCU), LL.M. (Edin), Diploma in Legal Studies Candidate, The Honorable Society of King’s Inns. The author

would like to thank Dr Robert Lane, University of Edinburgh Law School, for his comments on earlier drafts of this

article. Any errors or omissions are the author’s own.

1 International Enforcement Co-operation, Secretariat Report on the OECD/ICN Survey on International

Enforcement Co-operation (OCED 2013) 160 (OCED Report)

<http://www.oecd.org/competition/internenforcementcooperation2013.pdf> accessed 10 March 2016.

2 Maher Dabbah, International and Comparative Competition Law ( CUP 2010) 3.

3 Leela Cejnar and Rachel Burgess, ‘Challenging the Need for a “Global” Competition Law’ (2014) 35(9) ECLR

461.

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characteristics there are also considerable economic social cultural and political differences

between the jurisdictions that have introduced competition law regimes.

These differences make it difficult to reconcile the benefits of removing hindrances to

competition with the need for a set of global competition laws and policies. In addition the

uncertainty of how competition law should apply across jurisdictions remains the subject of

debate. Since the early nineties the principles of the market economy have been widely

embraced. As a result, competition laws spread around the world and subsequently many treaties

on competition law have been concluded.4 The treaties differ hugely in nature, some of them

provide for close cooperation, while others do not offer more than a statement of a very general

nature and an agreement to have regular talks. In their most advanced form, bilateral treaties aim

to facilitate international enforcement of antitrust violations or mergers by creating an active

form of mutual cooperation. Even though these agreements are certainly useful, some argue it

may well be time for a further step in international cooperation in order to provide for

coordinated settlements and leniency programmes.5 This ‘further step’ appears to be a global

competition law system, enforced by a dedicated competition agency with the resources to tackle

anti-competitive conduct across the globe.6

This article will first examine the historical context of clashes between the competition law of

the EU and third countries. The second part of the article will explore ways in which the EU and

third countries can address clashes between the respective competition regimes. A number of

possible solutions will be discussed, from the radical option of introducing a global competition

law that would see signatories benefit from a uniform set of rules with regard to competition law

all over the globe, to the use of bilateral treaties between the EU and third countries. The third

and final section of the article will offer concluding comments and observations on the issues

and ideas put forward throughout this article.

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4 The exception seems to be the agreement between the US and the Federal Republic of Germany, which dates from

1976. For an overview of the agreements see: <http://ec.europa.eu/competition/international/bilateral/index.html>

and <http://www.justice.gov/atr/public/international/int-arrangements.html> accessed 9 March 2017.

5 Piet Jan Slot, ‘International Competition Law – Bilateral Treaties’ (2015) 36(9) ECLR 391.

6 Jurgita Malinauskaite, ‘International Competition Law Harmonisation and the WTO: Past, Present and Future’

(Theory and Practices of Harmonisation Workshop, London, 24–26 June 2008) 12 < http://sas-

space.sas.ac.uk/3426/1/Malinauskaite%2C_Jurgita-

INTERNATONAL_COMPETITION_LAW_HARMONISATION_AND_THE_WTO.pdf> accessed 9 March 2017.