9th Noerr Competition Day – Global divergence in antitrust standards threatens competition

Brexit will confront companies with more intensive control of planned mergers and more investigations by the competition authorities. “This affects companies in Europe, China and the US in an era of increasingly noticeable divergence in antitrust requirements, especially in the digital sector,” said Fabian Badtke at the Noerr Competition Day, which was organised by Noerr for the 9th time. The head of the Antitrust & Competition practice at Noerr moderated the conference in Munich, which was attended by over 200 international experts in antitrust law.

“Post-transition, we will see more parallel investigations by the EU Commission and the UK competition authority,” emphasised Jens Peter Schmidt, co-head of Noerr’s Brussels office. Schmidt believes that this not only concerns merger control, where despite the voluntary system in the UK more domestic investigations can be expected, but also cartel investigations whenever the infringement has an effect on the EU as well as on the UK market.

According to Schmidt, Brexit will shift the political balance within the remaining EU-27: “The UK is a liberal market economy and its influence on EU competition policy in the past cannot be underestimated.” William Turtle, partner of the UK law firm Slaughter and May, pointed out the potential impact of this shift on antitrust enforcement: “While both the EU and the UK are likely to follow a similar approach in the assessment of digital platforms, absent the UK, the EU Commission may be urged by vocal Member States to follow a stricter course against state-owned or state-backed firms within the EU merger framework.”

But it is not only Brexit that worries the antitrust experts. Noerr partner Alexander Birnstiel sees new challenges coming for companies at a global level as well. “Europe, China and the US have different priorities in adapting antitrust rules to the digital age,” Birnstiel said. “However, different standards will make competition more difficult and cement monopolies.” Birnstiel debated this in a panel discussion with General Counsel Sebastian Biedenkopf (Robert Bosch) and Duco Zoomer (DAF Trucks) and with Charles F (Rick) Rule, Co-Chair Antitrust of US law firm Paul Weiss, and Yingling Wei, Head of Antitrust at Chinese law firm JunHe.

According to Kathrin Westermann, antitrust partner at Noerr’s Berlin office, the digital update of German antitrust law which is planned as part of the tenth amendment of Germany’s Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB) must also be considered in this context. Westermann stated that the planned changes are generally sensible and demonstrate a high degree of innovation power by the German legislator. “On the one hand, Germany could set new standards in antitrust law with the reform,” Westermann said. “But on the other hand, there is a risk that ‘digital antitrust law’ will become increasingly divergent globally.”

A further fundamental problem was pointed out by Noerr partner Karsten Metzlaff, who led a workshop on the revision of the Vertical Block Exemption Regulation together with Reto Batzel, Head of Competition & Compliance at Metro AG. “While the rapid changes in the digital and platform economy are very difficult to take into account in a rigid regulation, regularly revised guidelines could serve as an alternative.”