La nécessité d'un droit mondial de la concurrence

Abstract

THE NECESSITY OF A GLOBAL COMPETITION LAW The intensification of international trade, the increasing number of national (or regional) competition laws and the tendency to their extraterritorial application have increased the risk of contradictory decisions by national competition authorities. Besides, the accumulation of uncoordinated requirements imposed by coexisting national competition codes causes considerable costs at the expense of enterprises which are internationally active, not only but especially in the field of merger control. The problems arising can be tackled on a unilateral, bilateral or multilateral level. The article shows that the unilateral and bilateral approaches have their merits, but are not sufficient to resolve the fundamental questions. The same is true for the efforts made so far on the multinational level, e.g. within OECD, UNCTAD or the International Competition Network (ICN). Their activities are certainly useful to strengthen the co-operation between national cartel authorities and to create a global competition culture. However, these institutions did not reach a breakthrough in eliminating conflicts due to the diverging national competition law codes in the world. Only the WTO seems to have the capacity for adopting world competition rules of a universal and binding character. Certainly, the obstacles to a « TRAMs »-Agreement (Trade-Related Aspects of Antitrust Measures) seem to have grown after the failure of the Cancun Ministerial Conference in September 2003 : Now, not only national concerns of sovereignty have to be overcome. But the « Singapore Issues » have definitely become part of a negotiation package which will be untied only if a solution will be found for all components, including more appropriate rules for agricultural products. Nevertheless, this new connection is not only negative : As the history of trade rounds shows (with the TRIPs-Agreement being the most prominent example), solutions for particularly controversial subjects can be achieved if opponents are compensated for their consent by concessions in other trade matters. Therefore, the reluctance which can be observed in the field of transnational competition rules, should not discourage, and – above all – not inspire a too modest approach. A future multilateral WTO-competition agreement should contain not only the Doha elements (core principles like transparency, non-discri-mination and procedural fairness, provisions on hardcore cartels, appeal for technical assistance and capacity building), but in addition rules on the abuse of dominant positions and on vertical restraints which segregate national markets. There is no convincing reason why the WTO dispute settlement should not be applied to a competition law agreement. Regarding merger control (and private litigation), an agreement on specific rules seems out of reach. Works in other fora on the harmonisation of notification forms and procedures should be continued. At the same time, a restricted number of WTO-members could – in a plurilateral agreement – pave the way for the inclusion of merger control rules into the WTO system. As regards developing countries, their own interest militates for strong competition rules : Very often, these countries are the victim of international cartels or of bid rigging connected to public procurement. Concerns, that the non-respect of a WTO competition agreement could trigger cross retaliation in other areas, can be dispelled by the adoption of appropriate clarifications (no mandatory prosecution of cartel offences, flexibility in cartel exemptions, legitimacy of a national industrial policy, etc.). The problem of scarcity of resources can be met by delegating competition law enforcement to the regional level. If no valid reasons speak against world competition rules, there are strong arguments in favour of it. The widespread estimation has to be mentioned that the process of globalisation necessitates better rules on the international level. The economic system of market economy yields the best results only if certain conditions are met. An effective competition policy is one of these. The adoption of such rules within the WTO system would be an important response to the critique of globalisation by underlining that the expansion of international trade is subject to a framework striving to maximise not only private, but also public welfare.