Report on the 25th Annual Competition Conference

Sylvie Sobolová 
Kocián Šolc Balaštík, Prague 
ssobolova@ksb.cz 

Although the IBA Antitrust Section’s Annual Competition Conference celebrated its 25th anniversary in September 2021, it will go down in history rather as the first post-Covid IBA in-person conference. While attendees may have thought that no preventive hygiene measures could surprise them, there were a few special ones, such as the ban on exchanging business cards. For many, however, the networking opportunities were likely a strong reason to attend the conference, so participants who did not want to walk the line were quick to find a digital and sustainable solution: immediate social media interlinking or simply taking pictures of the conference badges. The lesson to be learned: it’s wise to update your profiles before coming to a conference during these times.

The importance of digital technologies and sustainability considerations in competition policy were discussed during the first day’s morning session. After Michael Reynolds’ opening remarks, Inge Bernaerts of the European Commission’s Directorate-General for Competition (DG Comp) introduced the European Commission’s Executive Vice-President Margrethe Vestager’s speech on the role competition policy and enforcement plays in supporting the European Green Deal.

In the first thematic block, which focused on new tools to control digital platforms, Bernaerts took the floor once again and explained the rationale behind the Commission’s proposal for a regulation on contestable and fair markets in the digital sector (Digital Markets Act). Various aspects of the proposed ex ante regulation addressing the issues of contestability and unfair practices of large gatekeepers, including its impact on innovation and investment and its controllability, were commented on by the industry representative, Kyle Andeer of Apple, as well as other speakers.

The second part of the morning session was launched with DG Comp Director-General Olivier Guersent’s keynote speech, which was dedicated to what he himself called the biggest review of EU competition policy ever: the update to the regulations and guidelines to address the transformation to a digital economy. His talk was followed by a roundtable of national enforcers, which included the heads of the Dutch, French, German and Spanish competition authorities, who discussed the current issues of competition enforcement. Important questions, such as whether the consumer must really be fully compensated for a competition restriction that was justified by an environmental contribution, the impact of differing standards of environmental protection in Member States and the decline in leniency applications due to damage claims, were discussed.

Discussions on how competition policy can support the EU sustainability goals continued in the first afternoon session. The speakers expressed their views on the role competition policy may play in sustainability efforts and to what extent businesses can compete on sustainability. The speakers agreed that competition enforcement, by preventing abuse of dominance and by recognising environmental contributions in the assessment of horizontal agreements and in merger control, may play a role as regulation itself is often not a sufficient tool. Nevertheless, it was also mentioned that various problems may arise, such as how to measure fair shares of consumers.

The subsequent session focused on vertical restraints and the ongoing review of the EU vertical block exemption and guidelines which addressed, in particular, the impact of e-commerce and digital platforms on distribution chains. Bernaerts explained the rationale behind the updated rules and the main changes to be expected, including those applicable to dual distribution and online platforms.

Virtually none of the participants missed the traditional Friday drinks reception on the rooftop of The Westin hotel, which provided another opportunity to network and discuss some of the controversial topics raised during the conference sessions.

Saturday’s session was launched with the keynote speech by Marc van der Woude, President of the General Court of the Court of Justice of the European Union, who provided a brief overview of the Court’s current agenda and, in relation to the main topics of the conference, explained that, for the Court, new societal issues constitute a question of fact assessment rather than a new legal problem.

As discussed in Saturday’s main session, the digital world is bringing about developments also in relation to merger control. It has become apparent that the digital and data mergers may require the application of stricter rules and presumptions compared to what has been the standard so far. Examples of the attempts to tighten merger control include the new EU Commission Guidance on the application of the referral mechanism set out in Article 22 of the Merger Regulation to certain categories of cases and the newly implemented size of transaction criterion in South Korean law.

The conference was closed with Michael Reynolds’s interview with Dr Jacques Steenbergen, President of the Belgian Competition Authority.

Despite the problems caused by the pandemic, the IBA Antitrust Section was successful in holding a full-fledged conference, which was not only professionally rewarding, but also offered hope that conference life will soon return to normal.