Two decades ago, the differences in our respective approaches—as exemplified by the GE-Honeywell matter—posed challenges for cooperation. But in the nearly 20 years since, the differences between us have narrowed considerably, particularly on the merger front.
Without such close cooperation in criminal enforcement, I firmly believe that our most important prosecutorial tool, our leniency program, would be much less effective in uncovering some of the most harmful cartels.
We may not reach the same conclusion on every merger review, but hopefully our mature relationship and close cooperation make differing conclusions less discordant.
Wednesday, February 21, 2018
Assistant Attorney General Makan Delrahim Delivers Remarks at the College of Europe in Brussels. See here.
Some important excerpts:
Starting with then-Commissioner Mario Monti and continuing with Commissioners Neelie Kroes, Joaquin Almunia, and on to Commissioner Margrethe Vestager today, Commissioners have expressed their commitment to the same consumer welfare standard that guides U.S. competition enforcement. As Commissioner Vestager has stated, “we don’t always do things the same way. But I think our goals are very similar: We want to protect competition and consumers.
This is not to say that we have overcome all of the differences between us. We still do have differences, but we talk about them regularly and respectfully, so that we can understand what motivates them.
For example, we have not yet closed the gap in the area of unilateral conduct. European competition law still imposes a “special duty” on dominant market players, while we in the U.S. do not believe any such duty exists.
With respect to unilateral conduct, we have particular concerns in digital markets. We continue to advocate for an evidence-based approach based on existing theories, which are sufficiently flexible to apply to new forms of doing business in the digital economy. Where there is no demonstrable harm to competition and consumers, we are reluctant to impose special duties on digital platforms, out of our concern that special duties might stifle the very innovation that has created dynamic competition for the benefit of consumers.
I will make every effort to work with our counterparts at DG Competition to narrow any gap between Brussels and Washington in this area. We must maintain our close dialogue on the cutting-edge issues—innovation, intellectual property rights, and digital markets—that will occupy much of our time in the future. Innovators and consumers in both of our unions deserve nothing less.