Today, there is a growing fear of resurfacing protectionism, from United States’ trade-war with China, to UK’s Brexit, to the less known trade-restricting measures adopted by countries globally. The General Agreement on Trade & Tariff (GATT), superseded by the World Trade Organisation (WTO) since 1995, rendered the classic forms of protectionism such as tariffs obsolete. However, it did not defeat protectionism; instead, protectionism has evolved through its protean capacity to adapt into new and often undetectable forms, now labelled as ‘murky’ protectionism (e.g. competition law enforcement and the recent bailout packages). It is argued that there are two ways in which States can utilise competition law to impair free-trade and restrict foreign firms’ access to domestic markets: the exemption of certain anticompetitive conduct under national competition law and the strategic application of domestic competition law. This article considers competition law as an instrument of protectionist policy with comparative analysis of the US and the European Union. Using an international political economy (IPE) perspective underpinned by overlapping theories of (legal/political) realism, this article establishes that, while no direct robust empirical evidence of protectionist motivations on competition law enforcement exists, particularly on ‘merger regulation and export cartel exemptions’, the presence of political elements on the decision-making, the wide discretion granted to competition authorities and the ‘sponge’ nature of competition law present an opportunity for the use of competition law for protectionist tendencies.

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Competition Law as an Instrument of Protectionist Policy: Comparative Analysis of the EU and the US

More than 20 years after the adoption of the first European Commission Leniency Notice, the detection and sanctioning of cartels remains a key feature of the enforcement agenda of the European…

Leniency and competition law: An overview of EU and national case law

Over the past decade, France has substantially eased the burden of anti-competitive regulations and effectively enforced competition law against anti-competitive practices. Various sectors have been opened up more widely to competition, and the powers of the Competition Authority have been strengthened. However, the administrative procedures involved in starting a business remain lengthy, and the number of regulations and rules is substantial, while their potential impact on competition is not fully taken into account when they are drawn up and implemented. Recent streamlining initiatives are welcome but remain limited. Meanwhile, the territorial fragmentation of public procurement procedures, which could decline following ongoing reforms, impairs their efficiency and entry and operating requirements appear to go beyond consumer protection in several regulated professions, such as in legal services and health care. In the retail sector, recent reforms have significantly relaxed negotiating conditions between suppliers and retailers, and Sunday trading is intended to be partly liberalised. However, the ban on resale below cost has not been challenged, nor the tight rules controlling commercial zoning. Individual shops that contract with superstore chains cannot change chain easily. Of the network industries, it is in the telecommunications sector that competition has made the most progress, and there is room for further improvements in transport and energy. This Working Paper relates to the 2015 OECD Economic Survey of France (www.oecd.org/eco/surveys/economic-survey-france.htm).

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Enhancing Competitiveness, Purchasing Power and Employment by Increasing Competition in France

EU trade policy, which is essential to a prosperous European economy and industry, has an important role to play in tackling the major challenges of our times relating to worsening geo-economic and trade tensions, enduring global sustainability issues and a deteriorating multilateral order.

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EU Trade Policy in Light of the New Industrial Strategy for Europe

Inventes il y a peu, a l'origine decries, les programmes de clemence se sont rapidement reveles un outil tres efficace de detection des ententes. Des responsables d'autorites, des praticiens et des…

Les politiques de clémence en Europe

The European Court of Justice has upheld a €30 million fine against cartel whistleblower Deltafina, which was imposed following the withdrawal of Deltafina's conditional immunity as a result of the…

The EU Court of Justice upholds the Commission's first withdrawal of immunity for cartel whistleblower but finds the General Court failed to timely adjudicate (Deltafina / FLS Plast)

In Short The Situation: The European Commission ("Commission") has faced significant pressure from stakeholders to quickly address growing concerns over the distortive effects of foreign…

The EU Commission adopts a proposal for a regulation on foreign subsidies distorting the internal market

The present contributions were gathered following up the 10th edition of the “New Frontiers of Antitrust” annual Concurrences review Conference held in Paris on June 14th, 2019, at the French…

Bernard Amory

Papers

Les politiques de clémence en Europe

The EU Court of Justice upholds the Commission's first withdrawal of immunity for cartel whistleblower but finds the General Court failed to timely adjudicate (Deltafina / FLS Plast)

The EU Commission adopts a proposal for a regulation on foreign subsidies distorting the internal market

Beyond Alstom-Siemens: Is there a need to revise competition law goals? (New Frontiers of Antitrust - Paris, June 14th, 2019)

Curage pédiculaire hépatique + bisegmentectomie IVb/V pour adénocarcinome de la vésicule biliaire (mini-invasive)