Sunday, December 12, 2010
Posted by D. Daniel Sokol
Ken Daly (Sidley Austin) discusses Imagining EU antitrust enforcement in 2030.
ABSTRACT: On October 20, 1932, in the midst of the Great Depression, the Pittsburgh Press reported on a meeting of American Institute of Steel Construction at which representatives of 166 steel concerns heard Charles N. Fitts, president of the Institute, and Charles F. Abbott, executive director, deliver their annual reports.
Fitts berated law-makers for the lack of assistance available in the recessionary climate and highlighted the:
"...narrow policy of our legislators who enact laws to guarantee the freedom of competition, but offer no assistance to those who are forced into bankruptcy because of ruthless competition."
He added that:
"Our antiquated Anti-Trust Laws with many uncertainties prevent any group action to stabilize either prices or profits. They will undoubtedly be clarified by intelligent interpretation or modified to bring them into harmony with modern conditions."
Following the same theme, his colleague Abbott advocated a government program with the aim of "educating industrialists to the realization that it is for their own good to co-operate and not indulge in cut-throat competition."
Even today's gloomy economic climate seems mild in comparison to what Fitts and Abbott were witnessing. In the three years prior to their 1932 meeting, industrial stocks had lost 80 percent of their value, 10,000 banks had failed, GNP had fallen 31 percent, over 13 million Americans had lost their jobs, and international trade had fallen by two-thirds.
Despite these astonishing conditions (and Fitts and Abbotts' impassioned entreaties for "reform"), the key tenets of competition law found in the U.S. Sherman Act of 1890 not only survived the Depression unchanged, but also remain substantially unchanged to this day. In short, the core principles of competition law seem so engrained in Western economies that even great shocks are unlikely to bring about major changes at the level of principle. In 1991, then EU Commissioner for Competition Sir Leon Brittan, mulled the constancy of competition law and the limitations of each Commissioner's role:
I am ever conscious that I have inherited responsibility for a system with an impressive constitutional pedigree. The founding fathers showed considerable foresight in grounding the Community competition scheme in Treaty rules. Not only have these rules, as part of the Community's highest law, been accepted by twelve Member States with widely varying traditions, but the rule of law has been reinforced by the existence of a firm set of principles which can only be altered by means of an amendment to the Treaty itself. Neither I, nor any of the competition Commissioners before me, write competition policy on a clean slate. Rather, we come to a structure whose broad contours have been in place for some time and whose architecture we must respect."
The former Commissioner's point is compelling for two reasons. First, (like in the United States) no changes had been made to the base principles of EU competition law between their adoption in 1957 and his 1991 speech, and no changes have been made since. Second, the twelve Member States he referred to serve as a reminder that so much else has changed within the EU and the global economy in a relatively short time-span, but the core competition principles have remained constant.