Interview with Jacques Steenbergen (Belgian Competition Authority): Concurrences 15-Year Anniversary

CONCURRENCES 15-YEAR ANNIVERSARY
Which competition policy for 2019-2024?

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Interview with Jacques Steenbergen1

President - Belgian competition authority, Brussels

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Jacques Steenbergen (Belgian competition authority) has been interviewed by Frank Montag (Freshfields Bruckhaus Deringer) in anticipation of the roundtable "Which competition policy for 2019-2024?" organised at the occasion of Concurrences 15-Year Anniversary in Brussels on Thursday 11 July 2019.

The roundtable is also composed of Cecilio Madero (DG COMP), Andreas Mundt (Bundeskartellamt), Marc van der Woude (General Court of the EU) and Cristina Caffarra (CRA International).

To read the program and register, click here.

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There has recently been a lot of debate around the speed and timeliness of intervention by competition authorities. Particularly in the context of fast-moving digital markets, antitrust intervention is perceived by some as slow and ineffective. Just a few days ago, the Commission announced that it intends to impose interim measures as part of its investigation into Broadcom. This marks the first time the Commission imposes interim measures since 2001. By contrast, the Belgian Competition Authority has been historically more willing to impose interim measures compared to most other NCAs. In your view, is the broader use of interim measures appropriate to address the concerns surrounding the timeliness of antitrust enforcement? What other measures or potential reforms could be implemented in this context?

The need to impact on market behaviour within a time period that meets the legitimate expectations of stakeholders is perhaps the biggest challenge to competition authorities. And not only in respect of fast-moving digital markets, even though our relevance if not our legitimacy is challenged most explicitly in respect of the digital economy.

It will always be difficult to conclude infringement cases, with respect for due process rules, in significantly less than 2 years. We must therefore do all we can to bring forward the useful effect of our interventions.

Interim measure procedures can help to limit the injury caused by infringements and to give a useful signal to markets. But they are not a miracle solution. Legal systems, such as the Belgian, that focus on avoiding injury with a light prima facie test are at first view better prepared to do so than legal systems focussing on prima facie illegality. But even with a very light prima facie test, the balancing of the legitimate interests of the defendant in case no infringement is established in the main case and the interests of the applicant in case an infringement is established but no measures are imposed, remains a delicate test. Interim measures can only be an effective instrument if the procedure is really fast (except in very unusual circumstances the BCA has to decide within 2 months), based on the arguments of the parties without a preliminary instruction by the authority (interim measures became more relevant in the BCA toolkit when the Legislator deleted in 2012 the preliminary investigation and opinion by the Auditorat), and therefore in practice when there are some precedents that help to establish the prima facie case. And that implies that the issues should not be ‘too novel’.

We can do more, and I think it is fair to say that we do more. Some points in respect of infringement cases, especially when cases concern novel issues:

• We need an early identification and case allocation as provided for in the ECN ‘early warning’ procedure, and fast track cooperation in related cases,

• We need a further optimization of accelerated procedures such as settlements and commitments, as well as an optimization of interim measures procedures,

• and more generally, we must use any technique that may bring forward the useful effect of such procedures, e.g. by communicating on dawn raids. The BCA changed its policy in this respect at the suggestion on the organization on competition lawyers in order to create a more level playing field for potential leniency applicants. These press releases (never naming companies) can also trigger compliance efforts in the industry.

But this will not be sufficient:

• I am, with others, convinced that we must develop the ability and willingness to offer guidance ex ante in guidance papers, also before we developed the relevant case law. Guidance papers cannot be expected to have an impact on new developments if they come after the market has waited for years for infringement decisions and their confirmation or annulment in Court.

• We must design procedures that allow us to sidestep the infringement route in a much less formal and fast track commitment procedure. That may not require a legislative change, but it will not be easy. It will e.g. require a careful definition of its scope: only for certain sectors, or operators or issues? And perhaps even more difficult, it requires a willingness to abandon in some cases the possibility or even probability to establish an infringement in order to give priority to an earlier outcome.

• And we must consider, as proposed by our Dutch colleagues, known in the UK and envisaged in France, at least at the EU level, an ex ante instrument that provides for binding commitments without establishing an infringement.

In response to the rise of online platforms, the European Council recently adopted a regulation introducing a number of transparency obligations for online platforms, including inter alia with respect to the main parameters used to rank search results. In the same vein, Belgium recently adopted legislation introducing a concept of “abuse of economic dependence”, which seems to draw inspiration from the concept of “relative dominance” found in German competition law. What do you view as the main challenges competition authorities face as a result of the rise of multi-sided internet platforms? Are existing competition law concepts and tools capable of effectively tackling these issues?

The Belgian legislation on ‘abuse of economic dependence’ is indeed inspired by German and French examples. The main challenge will be to establish dependence, especially when market definitions are shifting in a digital environment. The Legislator introduced in the same Act of 4 April 2019 provisions on abusive clauses and unfair market practices in B2B relations (not unlike what existed in unfair trade practices law in respect of B2C relations). I would not be surprized if the market preferred the unfair trade practices route for a quick resolution by the Judge rather than lengthy procedure before the competition authority.

I do not think that we need new concepts or primary law provisions to tackle issues raised by digital and other two-sided platforms. The tool to sanction abuse of economic dependence is, however, welcome. Not all, also digital, platforms have a dominant position. But in respect of non-dominant platforms we will need to examine carefully who is dependent on whom. In what is often a winner-takes-all environment, the smaller platforms are not necessarily the strongest elements in a chain.

The ECN+ directive was published earlier this year with the express goal to empower NCAs. We also recently saw the heads of a number of NCAs – including yourself – issue an open letter to Commissioner Vestager expressing concerns over the planned Siemens / Alstom merger. More broadly, we see NCAs becoming more vocal and actively pursuing often novel and complex cases. What is in your view the role of NCAs in shaping competition law policy in Europe going forward and what do you hope to have achieved in the next five years?

We are a network of colleagues. We can discuss Commission cases in advisory committees and the Commission can review our draft infringement decisions. That has not changed. What has changed since the entry into force of Regulation 1/2003 is that more than 85% of infringement decisions based on EU law are taken by national authorities. I do not think that this has changed as such ‘the balance of influence’. But at least since the ‘new economic approach’ and the development of forensic IT, we depend more on each other to learn from each other. And sometimes national authorities are the first or among the first to have to tackle issues. This has intensified the exchange of experience, the working and the significance of ECN working groups. You can see this also in the so called DG meetings. When I first joined, the emphasis was on being briefed by DGComp. Then more on being briefed and on validating the products of working groups. I must admit that we tended to get bored. We also wanted to discuss the challenges as we see them (sometimes to the dismay of our staff who fear that we tend to ignore the complexity of the world). This has, at least during the last two mandates, changed not only the dynamics of the DG meetings, but of the network. We receive proposals and ask for the elaboration of suggestions.

The open letter to the Commissioner in the Siemens/Alstom case was indeed a first in a merger case. It was not the first time DGs took position in public, as is illustrated by ECN Resolutions in 2010 and 2012 on agricultural issues. Merger cases tend affect the markets of some Member States more than others. And this letter was a concerted contribution in a case in which the parties had not asked for a hearing. Does all this mean that NCAs became more vocal? Or more transparent?

Dealing with novel issues in fast-changing markets when we do not know who will be the first who will have to decide, while stakeholders expect us to be both swift and coherent, constitutes a major challenge for the ECN. I expect a further upgrade of ECN Working groups on policy, and more of a two track approach to cases with, on the more challenging cases, an intensive concertation between all who are more concerned with either an NCA or a DGComp case. This will, in my opinion, not require new rules or safeguards. But it will require even more commitment to make it work.

1 The views expressed in this presentation are those of the author and do not necessarily represent those of the institutions to which he is affiliated.