Speed limits and antitrust - when do you need to prove actual anti-competitive effects?
When someone drives a car - say, an orange 1969 Dodge Charger - with 100 km/h in a town or while under the influence of alcohol, we all know why that person should be immediately stopped by the police and duly punished, even if the driver has not (yet) damaged a building or hit someone. He was acting in a way extremely dangerous to society, where we expect the government to act immediately even without actual harm having been inflicted.

Essentially the same applies to so-called per se rules in antitrust - applying to hard-core cartels such as price fixing, market sharing, bid-rigging, etc - as remarked by Justice Stevens of the US Supreme Court:

 

"The per se rules in antitrust law serve purposes analogous to per se restrictions upon, for example, stunt flying in congested areas or speeding. Laws prohibiting stunt flying or setting speed limits are justified by the State's interest in protecting human life and property. Perhaps most violations of such rules actually cause no harm. [...] Yet the laws may nonetheless be enforced against these skilled persons without proof that their conduct was actually harmful or dangerous." (FTC v. SCTLA, 493 U.S. 411 (1990))

 

The rules for such conduct are basically same in the European setting: in case of arrangements having "as their object" the restriction of competition, there is no need to prove that such conduct actually had harmful effects on the markets. If the authority can prove the existence of an agreement between two banana producers to raise the price of bananas next week, there is no need for the authority to go further and examine whether the price was indeed increased: the authority - in order to protect consumers - has the power to condemn when it detects the infringement.

 

But what about the other category of agreements caught by European competition law, ie those that have "as their effect" the restriction of competition? Surely, in such cases, the authority can only condemn an arrangement if these harmful "effects" have already arisen?

 

No so, according to the Hungarian Competition Authority ("GVH"). In two recent matters (Contact lens and BankAdat), the GVH unequivocally found that "by effect" arrangements can be condemned solely on the basis of potential effects, ie without the need to prove actual negative effects / harm to the market. The two cases concerned information exchange agreements (in the Hungarian contact lens and financial services sectors, respectively), which were already implemented for quite a number of years. It was undisputed that they could not be regarded as "by object" infringements (they were not connected to any cartel and did not concern future prices or quantities). The GVH solely based its reasoning on the allegation that on the basis of the characteristics of the market, the nature and frequency of the information exchanged and the publicity of the information they had "potential [negative] effects". In both cases, the arrangements were condemned and seriously fined; both decisions are now under judicial review in front of the Hungarian courts.

 

These cases entail an extremely wide interpretation of the notion of "by effect" infringements under European law and, if followed by other authorities, could lead to unexpected and unfavourable results.

 

  • European case law clearly requires antitrust authorities to intervene only if actual effects are proven, that is to show that the market would have been more competitive without the given arrangement (this is the so-called "counterfactual analysis"). 

 

  • Admittedly, not only actual but also potential effects need to be considered: these, however, can only be used as a supplementary method or if the given arrangement has not been implemented (for example, when the assessment of a future / planned arrangement is in question).

 

  • If a competition authority would be entirely exempted from proving actual negative effects, the clear lines between object and effect would be blurred. The whole point of having a "by object" restriction is to relieve the competition authority of its obligation to show anti-competitive harm (ie actual negative effect). If harm is not a necessary ingredient for an effects based case, then why distinguish between the two categories at all? As the European Court very acturely observed recently:
"The concept of restriction of competition ‘by object’ can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects, otherwise the Commission would be exempted from the obligation to prove the actual effects on the market of agreements which are in no way established to be, by their very nature, harmful to the proper functioning of normal competition" (C-67/2013 P Groupement des Cartes Bancaires).

 

  • As a result, if mere potential effects were sufficient in case of  implemented arrangements (that were present on the market for years), then the notion of "actual effects" would be stripped of any meaning. If a mere listing of potential effects is sufficient, then what do we use a full-blown effects based counterfactual analysis for? 

 

  • Finally, this wide interpretation could have a far-reaching effect on the applicable burden of proof: it could allow competition authorities to condemn arrangements solely based on "potentialities" and "theories" without any hard facts that are required under the "quasi-criminal" regime of antitrust law.

 

 

To summarise by using the driving methaphor once again: if the GVH's approach were to be followed, authorities may be cracking down on a sports car just because they see it accelerating with a lot of noise and dust - potentially, the car may go above the speed limit or may even hurt someone. Is this the right test for policing under the rule of law? Steven Spielberg's 2002 movie, the Minority Report may give an insightful answer...


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