E VE OF M ODERNISATION The panel responds After interviewing Emil Paulis, editor D AVID S AMUELS asked a group of in-house counsel and private practitioners what they thought of his responses Since ‘modernisation’ shifts the burden of work to business, GCR thought it appropriate to ask in-house counsel what their views of the final reforms are. We therefore invited four senior in-house counsel to review an advance copy of our Emil Paulis interview. Here are their thoughts. We have also included the thoughts of three private practitioners, and one well-known academic. The following presentation is a virtual roundtable—that is, the participants never actually met. Our panellists have also asked it to be made clear that the views expressed are their own, and not those of their organisations. We are happy to comply with those requests. THE PANEL Jörg Häring Stefano Macchi di Cellere Siemens AG Jones Day Sarah Biontino Jörg is a Syndikus (senior legal counsel) in Stefano is a partner of Jones Day, leading the Siemens AG’s Corporate Legal Department, antitrust and competition, new technologies, Allen & Overy Sarah is a French-qualified lawyer and based in Munich. He represents Siemens in and communications practices of the firm in former member of DG Competition who proceedings before the European Commission Italy. He has degrees in comparative law and now works chiefly in Public Affairs. As a and the German Federal Cartel Office, both in spent his whole career providing advice on EC Commission official, her field of expertise merger and non-merger cases. Prior to his and Italian antitrust laws. was Article 81 and 82. She now handles present position, he was with US law firm casework and lobbying in all competition Cleary Gottlieb Steen & Hamilton. areas for Allen & Overy’s EU practice group in Brussels. Rufus Ogilvie Smals GKN plc Nicholas Levy Rufus has been chair of the UK’s Confedera- tion of British Industry’s competition panel Cleary Gottlieb Steen & Hamilton David Broomhall Nick is one of the leaders of Cleary Got- since 1996. He is head of GKN plc’s legal tlieb Steen & Hamilton’s EU competition department. Rufus is a barrister by training. Freshfields Bruckhaus Deringer David is a partner in Freshfields Bruckhaus law practice. He recently featured in Global In his capacity as chair of the respected CBI Deringer’s antitrust, competition and trade Competition Review’ s ‘40 under 40’. Nick panel, he has been at the heart of develop- practice in Brussels. He has been based in is in fact picked in that article “for a sec- ments in both EU and UK competition law. Brussels since 1991. He helps to lead his ond time”: he made it into a version we did firm’s energy regulatory law group. in 1998. Nick has a two-volume book in print: European Merger Control Law: A Guide to the Merger Regulation. Dimitris Tzouganatos Tzouganatos & Co/general legal counsel to Jose Del Rey the OTE (Hellenic Telecommunications’ Repsol YPF Organisation) Group of Companies Dr Alan Riley Jose is a former deputy sub-Director Gen- Dimitris was, until recently, president of eral at Spain’s Competition Authority. He is Greece’s national competition agency Nottingham Law School trained as an economist and lawyer. He is Alan is senior lecturer in European Competi- (2000-2003). He is arguably Greece’s the Director for Regulation and Competition tion Law at Nottingham Law School. He is best-known competition figure. Since at Repsol YPF’s Corporate Directorate for also an associate research fellow at the leaving the world of enforcement, he has Legal Affairs. Brussels-based Centre for European Policy begun to combine academia and private Studies and chair of the Competition Law practice as a general counsel to a Scholars Forum, ‘CLaSF’. collective of Greek telecoms companies. 19 WWW .G LOBAL C OMPETITION R EVIEW . COM
E VE OF M ODERNISATION O GILVIE S MALS : Modernisation is a major GCR: What are your general thoughts Ogilvie Smals: experiment because nothing like the Euro- now about modernisation? B IONTINO : It is an inevitable step in an pean Competition Network has been Modernisation enlarged Europe. attempted previously and nobody can know H ÄRING : I welcome the new system because how well it will work in practice. It repre- is a major it abolishes a bureaucratic scheme, thereby sents, in effect, a federal system working leading to a more efficient use of resources without a federal structure. Much will experiment by the Commission. At the same time, as depend on how effectively the Commission Paulis says, it will grant the users of the sys- organises and monitors the operations of the because nothing tem more flexibility and the benefit of new system. It would be exceedingly dam- exemption without having to wait for a aging to the Single Market concept if com- like the European decision from an authority. However, the petition rules are not applied across all devil is in the details: Modernisation will do Member States on a level playing field basis. Competition away with the opportunity to secure immu- T ZOUGANATOS : Overall it was a necessary nity from fines, as was possible pursuant to move. We will have to wait for some years Network has Article 15 (5) of Regulation 17/62. Compa- for a fair assessment of its merits. nies and their counsel will bear full respon- been attempted sibility for their antitrust assessment in GCR: Did Paulis say anything that complex cases, when one can find about as previously and surprised you? many good arguments for legality as for ille- B IONTINO : No. gality. Yet, they are not entitled to request H ÄRING : No. nobody can guidance by the Commission, and in-house M ACCHI DI C ELLERE : I was very much— counsel is still not awarded a legal privilege. positively—surprised by the awareness of know how well L EVY : I believe that modernisation is a bold the need, and efforts undertook towards a reform that will usher in a new era in EU comprehensive training of national judges. it will work in competition law. The changes mark the end T ZOUGANATOS : No. of systematic referrals of restrictive agree- practice ments, which should relieve the Commis- GCR: Did he say anything that sion’s administrative resources and allow the disappointed you? Commission to focus on serious infringe- B IONTINO : No. ments. The participation of more actors in H ÄRING : Yes, regarding the in-house coun- antitrust enforcement should accelerate the sel legal privilege. development of EU competition law. That L EVY : It’s disappointing the Commission said, there is a pressing need to harmonise has not taken the opportunity of moderni- national competition authorities’ procedures. sation to adopt a more enlightened view on The success of modernisation will the legal privilege rules concerning in- depend on the efforts taken in its practical house counsel. In-house lawyers play a key application. National courts and competi- role in ensuring adherence to competition tion authorities face the challenge of mas- laws and their advice should be accorded tering the complex application of Article 81 privilege. It is also regrettable that the (3), which requires economic assessment as Commission is not yet in a position to clar- well as investigation. Achieving a balance ify the law on the scope and application of between ensuring a coherent application of Article 82. EC competition rules, which is necessary to M ACCHI DI C ELLERE : Yes. It was disap- avoid market fragmentation, and allowing pointing to hear that “companies knew per- national enforcement bodies to develop fectly well that it was almost impossible to their own vision of how such rules should get an exemption decision,” whilst putting be applied will be an important challenge in all the blame simply on the failure of the old the years ahead. notification system: in this respect the Com- M ACCHI DI C ELLERE : An attitude of sensi- mission should be less self-indulgent. ble scepticism should suggest that the T ZOUGANATOS : No. ‘Modernisation Package’ reform, imple- mented by Regulation 1/2003 and com- GCR: Did he say anything that raised pleted by the enactment of specific active concerns—what? guidelines, carries its own problems and B IONTINO : I thought there was a certain uncertainties even though—all things con- naïvety about the belief that courts across sidered—it must be welcomed, since it rep- Europe are preparing actively to face the resents an expected and long-awaited new challenge. evolution of the existing system and sets L EVY : Not really. forth a decentralisation that should be a M ACCHI DI C ELLERE : Even if we knew it key—in the long run—to obtain a consis- already, it is quite worrying the open admis- tent application and enforcement of EC sion that the ‘Modernisation Package’ will competition rules within the ‘enlarged’ bring along the risk of replacing a set of old European Union. bureaucratic burdens with other new ones. 20 GLOBAL COMPETITION REVIEW
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