Monday, October 3, 2011
Posted by D. Daniel Sokol
Damien M.B. Gerard, Louvain University addresses The ECN - Network Antitrust Enforcement in the European Union.
ABSTRACT: Drawing both from earlier policy discussions and more recent empirical findings, this paper explores the functioning of the European Competition Network. It is structured in two parts: (i) part one aims first to identify the various driving forces that have prompted the switch towards a network model in the enforcement (and design) of EU antitrust policy (section I.A); (ii) part two then endeavours to shape the institutional contours of the ECN and to provide an account of the rules governing its operation (section I.B). In turn, part two seeks to (re-)examine in depth two major challenges brought about by the decentralization process, which the ECN is deemed to facilitate, namely the parallel enforcement of EU antitrust principles by several NCAs (section II.A) and the management of the cooperation mechanisms relied upon in cross-border investigations (section II.B).
Indeed, beyond a systematic presentation of its purpose and means, this paper aims to confront three lasting phenomena affecting the ECN’s operation, namely: (i) the remaining fuzziness of the rules governing some important ECN processes, which questions the limits of experimentalism in the application of important economic policies; (ii) the scope of the territoriality principle in a system where local authorities participate in the application of “federal” rules by means of their domestic administrative enforcement system; and (iii) the significance of the enduring diversity of national procedural frameworks. Those three aspects, it is submitted, condition the perfection of the ECN’s operation and the sustainability of the decentralized EU antitrust enforcement system. They echo and substantiate in the meantime earlier concerns formulated in terms of effectiveness, legal certainty and due process.