Competition Law in times of Economic Crisis : in Need of Adjustment ?: GCLC Annual Conference Series

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ISBN : 978-2-8027-4546-4

Table of Contents

Foreword

Introduction

Composition of the working groups

I

Antitrust Law in Times of Economic Crisis

Part I: The views of the GCLC

Section (I): Anticompetitive agreements in times of crisis

1. Crisis cartels and restructuring agreements

1.1. Brief Historical Perspective

1.2. Crisis Cartels Under EU Competition Law

(a) Are Crisis Cartels always 101(1) Restrictions?

(b) The Availability of an Article 101(3) Exemption

1.3. National Precedents

(a) Ireland: BIDS

(b) Greek Fishing Farms

(c) Spanish Olive Oil Storage

(d) Dutch Shrimp

1.4. Procedural Issues: finding of inapplicability and informal guidance

2. Alternatives to Restructuring Agreements – Other Forms of Cooperation

2.1. Horizontal Cooperation: Specialisation agreements

2.2. Mergers

2.3. State Aid

(a) French Mills

(b) Dutch Beef (Weyl Beef)

(c) Dutch Pork

(d) Conclusion

Section (II): Unilateral behaviour in times of crisis

1. Enforcement of competition rules on unilateral conduct in the EU – state of play

1.1. EU Commission recent practice in the field of unilateral conduct

1.2. NCAs’ recent practice in the field of unilateral conduct

2. Competition enforcement and unilateral conduct - is there room for a different approach?

2.1. Unilateral conduct as opposed to State aid, anticompetitive agreements and anticompetitive mergers

2.2. Unilateral conduct in times of crisis - Is there room for reviewing the assessment criteria?

3. Shifting of enforcement priorities

3.1. Grounds for non-intervention

3.2. Competition law versus regulation

3.3. Interplay between competition law and consumer protection

3.4. Grounds for Intervention

(a) If there are high and non-transitory entry barriers resulting in a dominant position

(b) The dominant position is due to current/past exclusive/special rights or to previously unprosecuted exclusionary anticompetitive practices

(c) Lack of a sector-specific regulator with jurisdiction to set prices

4. Review of the enforcers’ toolkit

4.1. Non mandatory deadlines and transparency obligations

4.2. Commitment decisions

4.3. Interim measures

5. Conclusions

Section (III): Redefining EU antitrust fining policy in times of crisis

1. The current fining practice and the downturn

1.1. Recent fining practice

(a) Inability to pay

(b) Ability of the Commission to take into account the particularities of a given case

(c) Statutory fine cap

(d) Payment modalities

1.2. Conclusion

2. Rethinking fining policy in times of crisis

2.1. The objectives of a fining policy

(a) Deterrence

(b) Restitution

2.2. Alternative tracks for a fining policy

(a) Taking into account profits when calculating fines

(b) Use of alternative sanctions

(c) Reflection of damage compensation

3. Conclusion

Section (IV): Is a sector focus needed in a recession?

1. How to focus antitrust enforcement in times of crisis?

1.1. Collusive behaviour

(a) Impact of falling demand on collusion

(b) Recommendations

1.2. Exclusionary behaviour

(a) Effects increasing the likelihood of exclusionary behaviour

(b) Opposite effects

(c) Recommendations

2. Does the financial crisis affect the current sector focus?

2.1. Financial sector

(a) LIBOR/EURIBOR

(b) Credit Default Swaps

(c) S&P / Reuters

(d) Online payments (EPC)

(e) Multilateral Interchange Fees

(f) Recommendations

2.2. Information and telecommunication technologies

2.3. Pharmaceutical sector

2.4. Energy

2.5. Food and other basic industry sectors

3. Conclusion

Part II: The views of the EU enforcement officers

1. Introduction

2. Notion of crisis cartels and the underlying economic problem

3. Assessment of industrial restructuring agreements under Article 101 TFEU

3.1. Article 101(1) TFEU

3.2. Article 101(3) TFEU

(a) Efficiency gains

(b) Indispensability of the restrictions to attainment of the efficiency gains

(c) Consumers must receive a fair share of the resulting benefits

4. Conclusion

Part III: The views from the USA

1. The Incentive to Collude in an Economic Downturn

2. The U.S. Reaction to crisis cartels and suspending enforcement

3. Preserving and enhancing competition is – and always will be – the highest enforcement priority

Part IV: Conclusion

II

Merger Control in Times of Economic Crisis

1. Introduction

2. Merger enforcement challenges during economic crisis

2.1. The Standard of Review in Merger Control in Times of Economic Crisis

(a) Antitrust Laxity as a Response to Economic Crises

(b) Case Study: Lloyds TSB v. HBOS (2008)

2.2. The Outcome of Review in Merger Control in Times of Economic Crisis

(a) The Impact of Economic Crises on Market Realities

(b) Case Study: Olympic v. Aegean Airlines (2011)

2.3. Dealing With Mergers in Declining Industries in Times of Economic Crisis

(a) The Interaction of Pre-Crisis Decline and Post-Crisis Mergers

(b) Case Study: UPM/Myllykoski and Rhein Papier (2011)

2.4. Final Remarks on Merger Control Challenges

3. Merger defences in times of crises

3.1. The Efficiency Defence

(a) Current Regulatory Framework and Commission Practice

(b) Efficiency Defences: Time for Taking Them More Seriously?

3.2. Failing Firm Defence

(a) Status and Regulation of the FFD in EU Merger Control Law

(b) A Need for an Alternative Framework?

3.3. Final Remarks on Merger Defences

4. National merger enforcement during the crisis: more flexible?

4.1. A Few – Albeit Spectacular – Instances of Legislative and Political Intervention

(a) Legislative Intervention to Protect the Financial System and Certain Sectors

(b) Limited Political Interventionism in Merger Cases

4.2. No Widespread Relaxing on the Substance

(a) Failing Firm Defence: No Relaxing

(b) Beyond the FFD: No Signs of Increased Flexibility on the Substance

4.3. Remedies and Procedure: More Pragmatism

(a) In Certain States: More Pragmatism on Remedies

(b) In General: More Pragmatism on Procedural Matters

4.4. Final Remarks on National Merger Enforcement

5. Conclusion

III

State aid enforcement in the financial sector

1. Introduction

2. Overview - managing the financial crisis in Europe: the role of EU State aid law enforcement

2.1. Introduction

(a) The financial crisis as a market failure

(b) State aid as a remedy

2.2. State aid enforcement as a coordination tool

(a) Salvaging EU State aid rules to the benefit of certainty and stability

(b) Conditionality as the preeminent coordination tool

2.3. State aid enforcement as a regulatory fix

(a) Regulatory objectives underlying the crisis regime of State aid control

(b) Regulatory choices: tensions in the crisis regime of State aid control

2.4. Beyond the crisis and beyond State aid enforcement

(a) Managing the crisis beyond State aid enforcement

(b) State aid enforcement beyond the crisis

3. Substantive competition issues

3.1. The notion of aid in the financial crisis

(a) Advantage - The Market Economy Investor Principle test

(b) Advantage resulting from modification of terms of previously granted aid

(c) Beneficiary of aid measures

(d) Extension of deposit guarantee schemes

(e) Imputability to the State of liquidity lines granted by national central banks and implication of State resources

3.2. Compatibility assessment

(a) Return to long-term viability as the primary goal of banking restructuring

(b) The assessment of long term viability by DG COMP in practice

(c) Own contribution – burden sharing

(d) Compensatory measures (type, implementation)

4. Procedure issues

4.1. Firm on the principles - Flexible on procedure

(a) Rescue measures

(b) Restructuring measures

(c) Opening of in-depth investigations v. fast track: procedural differences

(d) Structuring and duration of procedures: portfolio evaluation, viability assessment

(e) The ECB as the central European banking supervisor

4.2. Judicial review (States, beneficiary & third parties)

(a) Overview of Judicial review so far

(b) Admissibility

(c) Challengeable measures

(d) Scope of judicial review

(e) Consequences of judicial review

(f) Possible damages actions

(g) Judicial review at the national level

4.3. Future procedural challenges (and additional commitments policy)

(a) Monitoring and reopening of proceedings (e.g. in case of new aid)

(b) Modification and abuse decisions

(c) Conclusion

4.4. Procedural specificities in the financial sector

(a) Structural v. non-structural measures at rescue stage

(b) In-depth assessment of business models and portfolios

(c) Long-term monitoring

5. Economic issues

5.1. Economic characteristics of the State aid enforcement in the financial sector and lessons from the financial crisis

(a) General remarks

(b) Economic lessons for State aid policy

5.2. Social cost

(a) Social cost of restructuring: limits and adequate control by the Commission

(b) Participation of workforce representatives in State aid proceedings before the European Commission

(c) Other issues

6. Internal market and competition issues: Interaction between new financial regulatory measures and State aid in the financial crisis

6.1. The pre-crisis and crisis situation: fragmented regulatory landscape versus exclusive competence of the Commission on State aid clearance

6.2. Towards a more harmonized regulatory and supervision landscape: EU initiatives and potential impact on State aid control

(a) The Commission proposal for a banking union

(b) Interaction with State aid policy

6.3. Addressing the sovereign issue - European Stabilisation Actions since May 2010 and interactions with State aid

(a) The feedback loop between the banking and the sovereign crisis and its impact on state aid control

(b) EU and euro-area actions in the sovereign crisis

(c) Possible interaction with State aid process and questions:

7. Conclusion

IV

State aid policy in the real economy in times of economic crisis

1. Introduction

2. Relationship between state aid rules and competitiveness

2.1. Introduction

2.2. The Europe 2020 Strategy and the European Union industrial policy initiatives to enhance competitiveness: the interface with competition policy

2.3. The role of the State aid rules in view of strengthening growth and competitiveness

(a) The basic objectives of the State aid rules and limitations deriving thereof

(b) Relevant areas of the State aid rules

2.4. The EU State Aid Modernisation

2.5. Link with common commercial policy, trade rules and reciprocity

3. Temporary framework: State aid to the real economy

3.1. Introduction: Context of the Temporary Framework

3.2. Description of the Real Economy Temporary Framework: a (temporary) step towards greater flexibility in State aid law?

(a) The 500 K Measure

(b) State guarantees

(c) Other measures: loans and simplification measures

3.3. Assessing the impact and phasing out of the Real Economy Temporary Framework

(a) The relative success of the Real Economy Temporary Framework

(b) Phasing out of the Real Economy Temporary Framework in 2011

(c) Over too soon?

4. Public intervention in the economy in times of crisis

4.1. Introduction

4.2. The MEIP and private creditor principle in traditional EU practice and case law

4.3. Has something changed because of the economic crisis?

4.4. Some final remarks

5. State guarantees in times of crisis

5.1. Introduction

5.2. Comparison of normal rules versus exceptional policy response

(a) Background and basic principles

(b) Scope (type of guarantees and beneficiaries)

(c) Economic rationale

(d) Conditions under which guarantees can be granted

5.3. Overview and analysis of Commission practice

(a) Commission practice under the Temporary Framework

(b) Commission practice regarding guarantees outside the Temporary Framework

5.4. Conclusions / Lessons for the future

(a) Temporary Framework as a long-term tool

(b) Temporary Framework as a short-term tool

6. Recovery of unlawful State aids, especially in cases of insolvency: Status quo amidst financial crisis?

6.1. Introduction

6.2. Overview of the rules for recovering unlawful aid

(a) Legislation

(b) Case law

6.3. The effects of the financial crisis on the recovery of unlawful aids

(a) Commission practice

(b) Case law

6.4. The recovery of unlawful state aid and the financial crisis: a substantial status quo

(a) Alternatives to recovery

(b) Recovery in cases of insolvency

(c) From the absolute impossibility to a financial difficulty defence?

(d) Economic continuity in insolvency cases

6.5. Conclusion

7. Rescue and restructuring guidelines – preliminary thoughts

7.1. Is there a need to refine the definition of a firm in difficulty ?

(a) Factual current definition and insights from guidelines

(b) Is this definition too broad or too narrow in times of economic crisis - based on the experience gained during the crisis?

(c) Assessment

7.2. Should the distinction between rescue and restructuring aid be maintained?

(a) The distinction got blurred over time

(b) Businesses are increasingly threatened due to external causes, in spite of sound fundamentals

(c) A renewed criterion: long-term viability of the undertaking

(d) Long-term viability and the private investor principle

8. Compensatory measures in restructuring aid cases during the financial crisis

8.1. Introduction

8.2. The Commission’s use of its power to impose compensatory measures under the Guidelines - before the crisis

8.3. Analysis of the Commission’s practice under the financial crisis - Lessons learnt

(a) No change in the Commission’s policy in the real economy

(b) Lessons learnt in particular with regard to compensatory measures imposed in the financial sector

9. Own contribution under the new R&R guidelines

9.1. Introduction and background

9.2. Overview of the requirements

(a) Own contribution requirement under the R&R Guidelines

(b) Own contribution / burden sharing requirements under the financial crisis rules

9.3. Analysis of Commission practice

(a) Commission practice regarding own contribution under R&R Guidelines

(b) Commission practice regarding own contribution/burden sharing in banking cases

9.4. Conclusion: should the own contribution threshold requirements in the R&R Guidelines be abandoned?

10. The problem of distortion of competition

10.1. Introduction

10.2. The assessment of distortions of competition prior to the crisis

10.3. Commission practice during the crisis

(a) Definition of the size of the firm in difficulty

(b) Firm in difficulty located in assisted areas

(c) Commitment not to grant further aid following the restructuring process

(d) Comparison to aid granted to financial institutions

10.4. Comparison and recommendations

11. The balancing test in the context of the R&R guidelines

11.1. Treaty provisions and Current R&R Guidelines

11.2. Standard Economic Balancing Test of the Commission

11.3. Non-applicability of Standard Economic balancing Test under the Current guidelines

11.4. Balancing of effects in the European Commission Practice

(a) Decisions applying R&R Guidelines

(b) Examples of balancing test in non R & R cases

11.5. Desirability of introducing a general balancing test in R&R Guidelines

(a) Application of a full balancing test

(b) Improving the economic underpinnings of the requirement of compensatory measures

12. The one time, last time principle in times of crisis

12.1. Introduction

12.2. The one time, last time requirement prior to the crisis

(a) The normative background

(b) The Commission’s practice prior to the crisis

12.3. The one time, last time principle during the crisis

(a) The temporary rules in response to the crisis

(b) The Commission’s practice in the context of the crisis

12.4. What is the future for the one time, last time principle in the revised R&R Guidelines for non-financial institutions?

13. Conclusion

V

The nexus between competition, industrial and trade policies

Part I: Introduction

1. The policy side

2. The legal side

2.1. The EU treaties

2.2. The EU courts

Part II: Industrial policy and competition enforcement: is there, could there and should there be a nexus?

Introduction

1. Definitional Issues

1.1. Targeted Industrial Policies

1.2. Competitiveness Policies

1.3. Synthesis

2. Positivist (or Legalistic) Analysis

2.1. Competition and Industrial Policy in the EU Treaties

2.2. Article 101 and 102 TFEU

(a) Industrial Policy as a Theory of Harm

(b) Industrial Policy as a Justification

2.3. Merger Control

(a) Industrial Policy as a Theory of Harm

(b) Industrial Policy as a Justification

(c) Member States?

2.4. State Aid Law

(a) State Aid Law and the Quasi Per Se Legality of Competitiveness Subsidies

(b) State Aid Law and the Rule of Reason Approach to Targeted Industrial Aid

3. Empirical perspective

3.1. Article 101 and 102 TFEU

(a) Article 101 TFEU

3.2. Article 102 TFEU

(a) Targeted industrial policy under Article 102 TFEU?

(b) Competitiveness Policy under Article 102 TFEU?

3.3. Merger Control

(a) Targeted Industrial Policy under the EUMR?

(b) Furthering the EU’s Competitiveness Policy under the EUMR?

3.4. State Aid

4. Policy Perspective

4.1. Overview of the Economic Literature

(a) Pros and Cons of Targeted Industrial Policies

(b) Pros and cons of competitiveness policies

(c) Conclusion

4.2. The Policy Perspective

4.3. Prospective Perspective

(a) Purpose of this Section

5. Conclusions

Part III: Competition policy and trade defence policy: two worlds apart? Also in times of economic crisis?

Introduction

1. What are EU trade defence investigations really about?

1.1. Trade defence is not about restoring competition

1.2. A small sacrifice of welfare in order to protect manufacturing industries and employment in the EU

1.3. Trade defence was a small evil necessary to make trade liberalisation possible in the first place

1.4. The core of the matter: the impact of trade defence on competition

2. How trade defence investigations work

2.1. Anti-dumping investigations

(a) Dumping

(b) Injury

(c) Causal link

(d) EU interest

2.2. Anti-subsidy investigations

(a) A subsidy

(b) That is specific

2.3. The trade defence measures imposed

2.4. Initiation of trade defence investigations

2.5. The gathering of data in trade defence investigations and decision making process

2.6. Safeguard investigations

3. Instances where competition arguments have been made in trade defence investigations

3.1. Price fixing arrangement in the upstream industry: distortion of costs having an impact on the injury and  causality assessments

3.2. Refusal to supply as self-inflicted injury

3.3. Abusive use of trade defence by dominant undertakings

3.4. Limited number of players having an impact on the duty level, and the rejection of an undertaking

3.5. Existence of a cartel between some of the complaining EU producers

3.6. Tentative conclusion

4. Issues identified and recommendations

Part IV: EUR O-preference in EU trade and competition law

Part V: Conclusion

Index

Foreword

Ben Smulders

¹

It was with great pleasure that I accepted an invitation to write a few words by way of introduction to this publication as it contains a compilation of reports based on a sophisticated analysis of highly complex issues that are of direct relevance to the current crisis. Indeed, one cannot underestimate the importance for an institution, such as the one I serve, to benefit from the views of practitioners, business and academia in these turbulent times when creative and critical thinking are absolutely key for policy making and enforcement.

In her opening speech at the 8th GCLC conference in November 2012, which was dedicated to the question: Competition Law In Times of Crisis: In Need for Adustment? and for which the various reports integrated in this book were originally prepared, Inge Govaere expressed the wish that at the end therof the question mark, occurring at the end of the conference theme, could be removed. By that, I understood, she meant that the answer to the question should be given, not that the conclusion would be reached that there is effectively a need of fundamental adjustment of competition law.

Indeed, going through the various reports, it strikes me that the overall view is that, as eloquently put by Fréderic Depoortere in his contribution, our business should be "business as usual but in very unusual circumstances". Others as well have pointed out that there is no need to fundamentally revisit the principles on which competition law is founded but that these extraordinary times may justify some degree of flexibility, often in terms of procedure though. At any rate, some of the reforms suggested in the reports are already underway but one can wonder whether they would have or should have not been initiated anyway, that is to say independent from the crisis and therefore as part of the Commission’s permanent duty to improve its output, to adapt to the constantly changing environment in which it operates and to remain as much as possible business relevant. I also understand from reading the reports that the crisis is often regarded as an opportunity to carry out reforms, or that the crisis has revealed the pre-existing need for reform or refinement, but that is not the same thing as arguing that they are necessary because of the crisis. That is how I perceived for instance, Enrique Gonzalez’ contribution about the failing firm defence in the context of merger control and Eric Morgan de Rivery’s contribution on the Restructaration & Rescue aid guidelines. More generally, none of the authors argues to introduce a social welfare standard in competition law, instead of or in addition to the generally accepted consumer welfare standard. I particularly appreciated Jacques Bourgeois’ contribution, putting, for the purposes of this exercise, competition law not only in a historic perspective but also in liaison with other economic policies that are necessary to pursue in order to address the deep economic and monetary crisis in which the EU finds itself. He too came to the conclusion that the case for enforcement of competition law has never been clearer than in these times, at least if we agree that (i) above all, the EU needs well functioning markets, delivering the growth and innovation, indispensable not only in order to get out of the crisis but also to in order to face the huge challenges of globalisation and (ii) competition law and policy is perhaps not the only but certainly a very important tool to achieve this. For the same reason, I read with great interest the contribution made by Nicolas Petit and Norman Neyrinck on the nexus between industrial policy, trade policy and competition law enforcement. For me it is clear that there is a nexus. It is the nature of what that nexus should be that is the subject of debate. And this brings me to the essence of my remarks.

Today the Union is facing its biggest test to date. It suffice to look at some alarming macro-economic trends:

• More than 25 million people are unemployed; this corresponds to more than 12% of the active population and nearly a quarter of the young has no job. Since the beginning of the sovereign debt crisis in September 2009, 3 millions jobs have been lost in industry and every month, 100.000 persons more are made redundant.

• Inflation in the EU has reached a level of approximately 3%, a very high rate if one considers most Euro Area Member States are going through a period of recession.

• Public debt has risen from 60% of Euro Area-GDP in 2010 to 90% in 2011. The budget deficit in the same period has increased from 4% of GDP to 6%.

• Some Member States do no longer have autonomously access to financial markets to collect the funds necessary to reimburse their loans of the past; others are not that far from that situation and in order to more or less contain this crisis, public aid for an amount of more than a trillion euro has been committed in order to enable Euro Area Member States in difficulty to reimburse their debts. At the same, in these Member States, foreign investments have reached an all time low or even have come to a complete halt and this is one of the reasons why they are faced with negative growth not only this year but probably also in the years to come. For the EU as a whole, growth remains weak.

• And more generally, the EU as a whole is losing competitiveness. In the last decade, our productivity increased only by 4% compared to 9% in the US and 11% in Japan whereas emerging countries are climbing fast the value-added ladder.

Now – in the face of the greatest challenge to the Union to date – we have a clear choice: are we going to invest in progress, that is to say in increased competiveness, or are we simply going to manage decline?

Member States have no choice, I would submit. Not only must they be genuinely committed but also they must be able to implement the necessary structural reforms in order to increase their competiveness up to a level allowing their trade and industry to grow again so that sovereings can collect the necessary tax revenues enabling them to reimburse or at least substantially reduce their debts. So the question, in the context of this crisis, is whether and if so how competition law can contribute to its resolution. The answer to that question cannot be that competition law and the ensuing discipline needs to be relaxed. Not only is that an intellectual short cut; more importantly, such an approach pre-supposes that competition law contributes to the crisis, is part of the problem and that is simply not a correct premise. It should be part of the solution and this means that it should be – and in fact is, as noted by Jacquelin McLennan – part of a more general policy geared toward increasing competitiveness. This was also the thrust of Massimo Merola’s contribution and I would like to give tribute to Massimo’s idea, which is at the origin of this book, of exploring the link between the economic crisis and the various facets of competition policy.

In fact, after reading the various reports, I believe more than ever that the Commission’s State aid control policy, probably more than its anti trust and merger control policy, has an important role to play in the resolution of the crisis. Indeed, since the beginning of the sovereign debt crisis in September 2008, State aid control has proven to be an essential coordination tool to ensure the effectiveness of Member States’ rescue packages, and is also bound to have contributed to their sustainability in terms of public finance. At the same time, it has limited the risk of a subsidy race among Member States and of overcompensation of the beneficiary companies.

In conclusion, I would like to quote European Commission Vice President Joaquín Almunia: "Competition policy is not only about ensuring that companies behave in a pro-competitive way. Competition policy is also about setting the adequate framework for governments to make better use of their scarce public resources, gearing them to spending on the most efficient areas". This shows clearly the strong macro-economic dimension of State aid law and policy, a dimension which, in my view, has not been developed because of the crisis but which has become more visible by the crisis and distinguishes it from antitrust and merger control policy.

The confines of this foreword do not allow me to do justice to the full intellectual richness of the varous contributions in this book. But let me again reiterate how much we appreciate in the Commission the authors’ creative investment for the benefit of the general good.

1 The author is Director in the Legal Service of the European Commission and a Guestprofessor of International and European Competition Law at the Free University of Brussels. The views expressed in this foreword are strictly personnal.

Introduction

Massimo Merola, Jacques Derenne and José Rivas, editors

1. The GCLC is the College of Europe’s research centre in the field of competition law and economics. It conducts research and organises events to discuss the current policy issues in the field of competition law. The GCLC typically presents the result of its research during an Annual Conference. The proceeds of the Annual Conference are published in a GCLC Series. Every three years, the GCLC sets out working groups to prepare a report on current law-making initiatives by the Commission. The report is delivered to the Commission’s participants ahead of the conference with the aim of contributing to the Commission’s thinking on the reform issue covered.

2. Hence, for the 2012 edition, as already in 2006 and 2009, the GCLC established working groups to prepare a draft report on the economic crisis and its interaction with competition law, which was sent to the Commission’s participants in advance and discussed at the conference. Following the Annual Conference, the working groups finalised their reports, which are now published in this book.

3. As everyone is aware, the crisis has deeply changed the enforcer’s agenda over the last four years and has influenced the policy and decision making of the European Commission in the competition field. How? Too much? Not enough? This is what we discussed during the Conference.

4. The choice of the topic by the GCLC’s Scientific Council was inspired by the acknowledgment that studies on the impact of the crisis had so far often only addressed single aspects or single provisions of competition law, whereas a comprehensive analysis encompassing antitrust, merger control, State aid, as well as neighbouring areas such as trade law and industrial policy had been somewhat left to the wayside.

5. The GCLC saw a potential added value in proposing a coordinated approach, which would allow to go beyond the concrete issues arising in respect of single areas of law, thereby providing an additional level of reflection. Indeed, even assuming that the conclusion in one or several areas would be simply that the crisis should not affect the enforcement of the rules on competition, a joint review would nevertheless undoubtedly enrich the study by highlighting the common features and discrepancies between areas of enforcement, and stimulating new reflections.

6. From another perspective, our choice was driven by the objective of combining a thorough and comprehensive analysis of the state of play in terms of legislation and decision making practice, with the submission, where possible, of proposals or ideas that can contribute to orient the Commission’s choices in an area that is continuously exposed to changes in law and policy.

7. This is in line with GCLC’s mission, which is not only to host a brainstorming exercise between high-level practitioners and academics, but also – and above all – to come out with adequate and feasible reform proposals to be shared with the Commission.

8. It is against this background that we have set up five working groups, which were each allocated a macro-area of competition law to examine how it has been affected by the economic crisis in recent years and which represent the backbone of the Conference programme. The working groups are divided as follows: antitrust law in times of crisis, merger control in times of crisis, State aid enforcement in the financial sector, State aid policy in the real economy in times of crisis and finally, the nexus between competition, industrial and trade policies. The text below corresponds to the conclusion of each chapter.

Antitrust Law in Times of Economic Crisis

9. This working group found that competition authorities already have the correct tools to enforce antitrust law against collusion and unilateral behaviour in a way that takes into account the current crisis. Our research showed that the European Commission also took into account the crisis in setting fines, although in a haphazard way. We therefore plead for a more fundamental rethinking of the fining policy. Finally, we investigated whether enforcement needs to focus on specific sectors during a crisis. We found this not to be the case, but recommend analysing firms’ responses to the crisis in order to detect anticompetitive behaviour.

10. In the two final sections, we give the word to an EU enforcement officer and a US antitrust practitioner to put our findings in perspective.

11. As regards crisis cartels (or restructuring agreements), we found that a well-designed agreement between competitors may help to overcome structural overcapacity in a market, while providing enough safeguards to limit distortions of competition. The framework of Article 101(3) TFEU allows for an analysis of such agreements and has been used to justify them in the past. However, the current rigid approach of the Commission in applying that paragraph means that it is doubtful that the Commission would agree to exempt a restructuring agreement nowadays. We find that this negative approach is unwarranted and undesirable from a policy perspective, since it may push firms to covert collusion instead of entering into a controlled restructuring agreement.

12. Further, we question the preference of mergers over restructuring agreements to solve structural overcapacity problems, especially since mergers remove a source competition for ever, while restructuring agreements are limited in time and scope. Finally, we found instances of State aid cases which have been used to get clearance for a (State supported) restructuring agreement.

13. Abuse of dominance cases should continue to be pursued during the crisis, even though we recommend focusing on the more obvious cases since the cost of error is greater during a recession. The effect-based analysis permits taking into account changing economic conditions, such as limited access to capital markets which may make predatory strategies more profitable. We also reject focusing on exploitative practices (including excessive prices). Even though this may be a popular choice, there are strong economic arguments against such enforcement.

14. We recommend reforming antitrust procedures to lower the cost of enforcement and to increase transparency and accountability obligations. For example, investigations could be started by reasoned decisions (as is the case in Italy) and non-mandatory time limits for the investigation could be introduced (as in Italy and Spain).

15. The fining policy has been criticised as being absurdly high, especially in times of crisis. We found, however, that the Commission has shown some flexibility in recent cases. The obvious tool is the inability to pay provision, which has been applied in a number of recent cases. Even outside of this, the Commission retains a wide discretion to take into account the economic context. Our research showed examples of adaptations to the fine, notably because the company was mono-product (Window Mounting) or an independent trader (Calcium Carbide). The application of the 10% statutory cap has also been used to reduce the fine (Prestressing Steel).

16. While the Commission may have been receptive to crisis arguments in setting the fine in individual cases, we recommend rethinking the fining policy in a more fundamental way. We call for taking into account the level of profit, thinking about alternative sanctions (including on individuals) and taking into account voluntary damage compensation.

17. The working group also investigated whether enforcers should concentrate on certain sectors. Rather than singling out certain sectors, we recommend that enforcers focus on changes (or lack of changes) in a market as a response to the crisis and assess whether this is explained by anticompetitive conduct. For example, the Commission could monitor markets in which a decline in demand has led to lower volumes but not to lower prices.

18. The second part of the chapter sets out the views of an EU enforcement officer, who discusses the treatment of restructuring agreements. He highlights that collaboration to reduce overcapacity is normally not needed as the competitive process in itself will solve the issues. Only in certain dysfunctional markets there might be room for multilateral agreements to reduce capacity. Parties will need to demonstrate that the conditions of Article 101(3) TFEU are fulfilled and in particular that this was the least restrictive way of achieving the result.

19. In a final part, we give the floor to a US practitioner to provide the views from the other side of the Atlantic. Temptations to form cartels may be higher in times of crisis and may even be justified in executives’ minds to safeguard profitability (and therefore remuneration) and possibly employment. However, the US have learnt the lesson of the Great Depression and know today that softer antitrust enforcement is not the answer. The Obama administration and the DOJ’s Antitrust Division made it clear that antitrust enforcement shall not be relaxed, on the contrary. The Antitrust Division nevertheless agrees to take account of financial problems of companies and may limit the fine or spread its payment, which is a commendable practice.

Merger Control in Times of Economic Crisis

20. The working group on merger control concludes that the mechanisms for assessing the effects of mergers are appropriate in that they provide enough tools to take account of economic reality. However, there is a case for re-considering the standard of proof and the assessment of both efficiencies and the failing firm defence (FFD) in individual cases. Finally, we found that, so far, merger control has successfully resisted legislative and political intervention at national level, despite a few spectacular instances.

21. From an empirical perspective, there is little support for laxer enforcement, let alone the suspension, of merger control rules. Indeed, economic literature support that the suspension of competition law enforcement as part of the New Deal policies accounted for 60% of the weak recovery of the Great Depression. By relaxing antitrust laws, policy makers sacrifice long term competition for uncertain short term benefits. This is illustrated by the Lloyds TSB/HBOS merger, by which HBOS was saved from insolvency but because of which competition in the Scottish banking market is severely reduced. The working group considers that State aid would have been a more appropriate tool, allowing the prevention of systemic failure while keeping a certain level of competition.

22. Merger control in economic crises is not, however, business as usual. First, a major economic crisis often coincides with an increase in price elasticity faced by firms. Since consumers are less willing to accept higher prices, closeness of substitution between competing brands is higher than it would be outside a crisis. This can only properly be taken into account through real effect-based merger review rather than through a formal one based on market shares only. The optimal market structure may also differ in the context of a crisis. Due to changed demand dynamics, the pre-merger structure may be unsustainable, which must have an effect on the counterfactual against which the post-merger situation must be considered. This question arose in the Olympic/Aegean Airlines merger, in which it could be doubted whether a duopoly for flights from Athens is a sustainable equilibrium.

23. Secondly, when industries face structural overcapacity, mergers may be an efficient way of adapting to the new circumstances. In the absence of mergers, firms might engage in a war of attrition leading to inefficient outcomes. This type of argument was used in UPM/Myllykoski and Rhein Papier. However, the Commission based its clearance of that merger on industry-specific arguments rather than setting out a general framework for assessing these efficiencies.

24. As to the treatment of efficiencies in general, this working group found that it is time to take them more seriously. Our review of cases shows that the Commission have sometimes rejected efficiencies too easily or refused to consider them as a decisive factor in its assessment.

25. The type of efficiencies that are taken into account is influenced by the welfare standard that is chosen. For example, a total welfare standard allows treating reductions in fixed costs as efficiencies, even though it may result in higher prices for consumers in the short term. We reviewed arguments for and against different welfare standards, even though we note that the choice is more political than technical. Finally, we argue that the standard of proof when balancing anti-competitive effects and efficiencies needs to be harmonised. Once a consumer welfare standard has been adopted, the application of an asymmetrical standard of review lacks any economic and legal foundation.

26. We reviewed the application of the FFD in EU merger control law and found that it has not played a key role in the Commission’s strategies to overcome the current economic difficulties. We discussed arguments to relax the conditions for the FFD as well as arguments supporting the current strict framework. Most scholars, practitioners and institutions continue to advocate such an approach. In fact, some argue that the FFD is merely a counterfactual scenario which does not warrant any special treatment. The OECD notes that the FFD is based on presumptions, notably that the permanence of a trimmed down and handicapped company in the market is necessarily superior from a competitive perspective than the merger. Rather than relying on such presumptions, the OECD argues that a full effect-based approach should be implemented. This approach would entail first that the competition authority identifies the most likely counterfactual (without relying on presumptions) and secondly, to compare the factual and counterfactual scenarios. While this approach may lead to more economically and socially efficient outcomes, it also renders the administration of it more burdensome and the outcome less predictable for the merging parties.

27. In a final section, we analysed the practice of NCAs. We first examined whether national merger control had been influenced by political or legislative intervention. We found some derogatory legislation, for example in Ireland and Germany for the financial sector or in Italy for essential public services. However, this has had a modest influence on merger control policy. It seems that the Lloyds TSB/HBOS merger is the only clear example of political intervention, even though many Member States have provisions allowing for such interventions, often through the Minister of Economy.

28. On the substantive assessment, NCAs also stood their ground. In particular, our review found that the NCAs continued to apply the FFD in a rigid manner, sometimes even more strictly than the Commission (in the case of the Bundeskartellamt).

29. However, NCAs have been more pragmatic in procedural matters and, in certain Member States, on remedies. Authorities across Europe have agreed to speed up procedures for non-problematic mergers and to grant exemptions from the prohibition of implementing a concentration. Regarding remedies, the UK Competition Commission and the French Autorité de la Concurrence both recognised that structural divestments may be complicated as buyers face difficulties in raising finance. For example, the Competition Commission declared that it may accept behavioural remedies in such cases; the French authority agreed to a hold-separated commitment instead of an immediate divestiture in the Banque Populaire/Caisse d’épargne case.

30. This relative resilience can be seen as a sign that competition law has become more rooted in national cultures. At the same time, it should be noted that the crisis is not over yet and that temptations to relax merger control may still lie ahead.

State Aid Enforcement in the Financial Sector in Times of Economic Crisis

31. In September 2008 the financial markets collapsed, consequently exposing the European regulatory landscape which was in place at the time. A swift return to stability became a priority for all Member State governments. However, any immediate intervention by public authorities was fixed with conditions to restore competition in the longer-term. Effectively, the balance between correcting an apparent market failure whilst preventing any future distortion of competition was to be established. The quest to find this balance lies at the heart of EU State aid law enforcement.

32. The Commission systematically accepted that the exceptional circumstances of first, the financial crisis and consequently the sovereign crisis were the primary factors to be taken into account in its assessment and application of State aid laws. Since the financial crisis, rescuing ailing banks with State money became, in many ways, normal procedure in the EU and State aid control by the Commission has not, as of yet, stood in the way of this. Hence, in order to balance all objectives and prevent any future distortions of competition the Commission had little choice but to authorize State intervention pursuant to Article 107(3) (b) TFEU – subject to conditions. These conditions were used as a key instrument in the negotiations between the Commission, the relevant State and the beneficiaries of the aid in order to ensure coordination and consistency at European level.

33. The emergence of EU State aid rules as powerful coordination tools was very much characterized by the institutional system at the time i.e. the absence of an EU treasury, a banking regulator and a resolution authority. This institutional gap allowed EU State aid rules to address any underlying problems found close to the nucleus of the underlying problem. The Commission used an opportunity to acclimatize bailout plans, whether in the form of guarantees and/or capital injections, into a series of behavioral conditions that have been applied in a relatively homogeneous fashion across the EU. Furthermore, conditions attached to the benefit of State support enabled the Commission to pursue a complex mix of competition and regulatory objectives in dealing with the unprecedented challenges inevitably raised by the crisis.

34. Beyond the institutional perspective, the State aid enforcement system as a whole has proved to be a cornerstone for the management of the financial crisis in Europe. In particular, it enabled the Commission to coordinate the various national recovery plans and to pursue a combination of competition and regulatory objectives by conditioning the benefit of public support schemes to various requirements. Despite its effectiveness however, the reliance on State aid rules has also shown its limits and has been supported and supplemented by a broad legislative agenda for reforms of the EU regulatory framework for financial services.

35. Two items seem particularly interconnected with the Commission’s decision-making practice in the current crisis period: bank recapitalization to meet regulatory requirements (including the creation of temporary capital buffers to counter exposure to sovereign debt), on the one hand, and the proposed framework for the recovery and resolution of credit institutions and investment firms, on the other.

36. Regarding procedural issues and judicial review of decisions adopted by the Commission, considering the relatively untested legal basis of Article 107(3) b) TFEU and the magnitude of the financial stakes, the number of appeals against Commission decisions regarding State aid to banks in the financial crisis has remained remarkably limited so far. Additionally, there have been no actions for damages regarding Commission decisions on State aid to banks.

37. The transformation of the financial crisis into a sovereign crisis has highlighted a fundamental drawback of the initial European response to the banking crisis, namely the fact that it rested on national initiatives to rescue banks – in other words, banks remained European in health and national in sickness. These national interventions have highlighted the two-way feedback loop between banks and the sovereign rating of their home country Member State. In this context, State aid rules have been relied upon as effective coordination tools and as a regulatory fix.

38. Thus, the enforcement of EU State aid rules as well as various remedial measures designed by national governments contributed to alleviating the primary causes of the financial crisis – rooted in the specificities of the banking sector. In this way, we can see that the Commission has distinguished itself from a supervisor of national State aid measures to a supervisor of restructuring efforts of individual banks, reshaping the European banking landscape through extensive commitment packages.

39. State aid rules therefore, have coped with the challenges created by the crisis and contributed to restoring confidence and stability by acting as a coordination device ensuring the effectiveness of proposed rescue measures and at the same time maintaining a level playing field by preventing any subsidy races or unfair competition among banking institutions.

40. In effect, the State aid control system and in particular the conditions attached to the authorization of rescue measures allowed the EU to mitigate structural problems affecting the EU banking system and prevent substantive regulatory failures. We must note, however, that there was and in many ways there still is a need to move beyond State aid enforcement in dealing with the crisis.

41. This developing framework of EU-wide harmonized regulatory mechanisms should allow the Commission to re-focus State aid rules for banks towards the traditional role of State aid control: ensuring that State aid is directed towards remedying market failures, limiting distortions of competitions – especially those arising from moral hazard – and leaving questions of banks and their viability to the new system of European banking regulation.

State Aid Policy in the Real Economy in Times of Economic Crisis

42. The research of the working group has evidenced that the legal tools which are at the disposal of the Commission to attain the economic objectives enshrined in the State Aid Modernisation (SAM) are inadequate as far as aid for non-financial undertakings is concerned. The Commission has rightly pointed out that State aid control can play an important role during the crisis and in the aftermath of it to foster economic growth while preserving budget discipline. However, it has not sufficiently explored whether, following the expiry of the Temporary Framework for the real economy, the present rules provide sufficient tools to fight for this objective. Similarly, it has not sufficiently focused so far on the interlink between economic growth and the competitiveness of the European economy. Albeit the latter objective is at the heart of the 2011 European Competitiveness Report, it has found scarce or no resonance in the SAM Communication.

43. Our study showed that the decision of the Commission not to extend the validity of the Real Economy Temporary Framework beyond 2011 should not be regretted in spite of the fact that lending conditions in the Eurozone have not significantly improved and that overall, the economic situation continues to deteriorate. The main reason for this is that the derogatory measures embedded in the Real Economy Temporary Framework have had only a limited impact on the economy. This is probably due to the conventional and out-of-focus nature of these measures, amid which only the revision of the requirements for State guarantees deserves to be preserved and strengthened in a forward-looking perspective. In addition, from a strictly legal point of view, the clear derogatory nature of most of the measures set forth in the Real Economy Temporary Framework makes their reiterated extension undesirable.

44. In essence, what is needed is a set of innovative legal tools, specifically tailored to the designed objectives (mainly facilitating access to finance for non-financial enterprises) of a non-derogatory nature but compatible with the upper norm and the basic principles of the State aid regime.

45. Before going deeper into this aspect and put forward some thoughts on possible new measures, the working group explored whether any lesson can be drawn from the experience gained during the crisis in terms of the application of some basic concepts underpinning the State aid regime and of a refined compatibility assessment of rescue and restructuring aid.

46. Based on a thorough review of the Commission practice and case law on the application of the MEIP, we concluded that the crisis had no substantial impact on the application of the MEIP by the Commission (the same can be said for any other concept enshrined in the notion of aid within the meaning of Article 107(1)) and this is unlikely to happen in the future. In our view, the strict approach taken by the Commission in this respect deserves no criticism, as we do not see scope for more flexibility in the definition of the existence of aid (unlike in the compatibility assessment).

47. Similarly, a relaxation of the rules on recovery of unlawful aid is highly unlikely. Although some novelties should no doubt be considered in the framework of the reform of the Procedural Regulation and, building upon recent case law, they could hopefully lead to a more sophisticated application of the principles of absolute impossibility (and perhaps of the principle of proportionality) in times of crisis, they will not affect the rigorousness of the recovery process overall, which is one of the recent achievements in State aid enforcement and should be preserved. Besides, whatever amendment of recovery rules would be largely unrelated to the crisis management policy as it does not affect the essential problem of access to funding for non-financial enterprises.

48. Far more controversial is the issue of the role to be assigned to State guarantees in times of crisis and their assessment under both Article 107(1) and 107(3) TFEU. Quite surprisingly, and disappointingly, aid in the form of guarantees accounted for only 1% of the total crisis aid approved under the Temporary Framework, less than the non-crisis aid figure. This is at odds with the idea of a refined economic approach in State aid enforcement, as guarantees are more financially-effective and less distortionary measures to help restoring appropriate lending to the real economy and to stabilize the economy as a whole. In addition, an instrument-based approach, as in the Temporary Framework, would be welcome in the case of guarantees, as not all forms of aid are equally tailored to tackle the information asymmetry, which is the most important market failure in times of economic crisis.

49. The last part of the research of working group was devoted to the shortcomings of the present text of the Rescue and Restructuring Guidelines, as well as to emphasise the changes that would help to achieve a refined compatibility assessment of rescue and restructuring aid in the framework of the on-going revision of the Guidelines. In this connection, the working group has put forward several recommendations concerning issues such as the own contribution principle, the nature and characteristics of the measures intended to ensure a proper burden sharing, the appraisal of distortion of competition, the balancing exercise, and the one time, last time principle.

The Nexus between Competition, Industrial and Trade Policies in Times of Economic Crises

50. As part of its Europe 2020 flagship initiatives, the European Commission held that it is necessary to consider the competitiveness effects of all other policy initiatives.¹ We investigated whether the competition and trade policies could, or even should, take into account other policies, in particular industrial policy.

51. Before delving into the analysis, we clarify the meaning of industrial policy by highlighting that it can take (mainly) two different forms. On the one hand, targeted industrial policies are aimed at assisting specific firms or sector chosen discretionarily, on the basis of loose criteria and can be applied ex-ante (by supporting the growth of an industry) or ex-post (by saving an ailing firm). Competitiveness policies, on the other hand are a pro-active trade instrument, applied horizontally and which generally seek to solve market failures.

52. The EU Treaties, in particular Articles 3(3) TEU and 173 TFEU, list competitiveness as one of the EU’s objectives. The Treaties are however silent on how this Article interacts with the provisions on competition law. We therefore turn to case law and decisional practice to investigate how industrial policy can and has been taken into account in competition law.

53. As regards Articles 101 and 102 TFEU, their prohibition rules do not leave space for such arguments. However, public policy concerns may provide ground for justification of otherwise illegal behaviour. Indeed, the third paragraph of Article 101 TFEU has often been used to authorise behaviour on grounds such as environmental protection, employment, media pluralism etc. The Court also supported the inclusion of industrial policy arguments in the analysis of Article 101(3) TFEU, notably in its judgments in Metropole Television and Matra. In contrast, the Commission’s Article 101(3) Guidelines take a much stricter approach by limiting the admissible justifications to purely (micro-) economic ones. We find that the interpretation of the Courts should prevail over the Commission’s view: public policy arguments such as competitiveness may be found to "improve the production or distribution of goods or to promote technical and economic progress". This said, such arguments must still pass the other three conditions of Article 101(3), which brings a safeguard against type II errors.

54. In a similar vein, the Commission’s Article 102 Guidance Paper allows for justifications, although limited to demonstrating efficiency gains rather than including industrial policy. Here again, we find that competitiveness arguments should be allowed. This is because, first, the form of the behaviour (coordination or unilateral conduct) should be irrelevant (i.e. it cannot be that such arguments can be brought in Article 101 cases and not in Article 102 cases). Secondly, in some cases public policy arguments have been taken into account in Article 101(1) TFEU (Wouters or Meca Medina), so that it does not seem impossible to do the same in Article 102 TFEU cases.

55. Similar conclusions apply in merger control. Even though a merger cannot be blocked on other grounds than competition grounds, public policy arguments can legally be used as a defence under the EUMR.

56. As regards State aid, true competitiveness subsidies do not fall within State aid control since they are non-selective. Targeted industrial aid does constitute State aid. However, we found that State aid law is not necessarily hostile to such aid, in particular for rescue and restructuring measures. This said, rescued companies must restructure and offer compensatory measures in favour of competitors, which can be seen as an attempt to soften the selectivity of the measure and spread the benefits across the sector.

57. Economic literature does not bring a firm answer on the merits of industrial policy. Scholars are divided, perhaps by reason of ideological tensions. The EU institutions, however, seem to have embraced competitiveness and consider that it should be part of competition enforcement. This conclusion is based on a reading of the Lisbon Treaty itself, as well as a number of resolutions and declarations, amongst which the European Competitiveness Report of 2011 is the most prominent.

58. The work group concludes by setting out some prospective views for enforcement activities and potential changes to the law. We support the findings of the Competitiveness Report but suggest turning those into more concrete suggestions, which we set out in this chapter. Finally, we argue that the law may be adapted to allow differentiating efficiencies that accrue to EU consumers from those which affect non-EU consumers.

59. As regards the nexus between trade and competition policy, we found that insights from competition law are underused and that trade defence measures may have an adverse effect on competition, for the following main reasons. First, the calculation methodology for the dumping margin can be significantly distorted in favour of a finding of dumping. This may result in foreclosing producers from certain countries completely, with the effect of depriving users of those products from the benefit of competition. We recommend that duties should never foreclose imports but be limited to reducing the volume and increasing the price.

60. Secondly, the requirement that trade defence complaints must be supported by representative EU producers may give an advantage to dominant companies as they are in a position to use trade defence complaints strategically.

61. Thirdly, the fact that users and consumers are very unlikely to be involved in trade defence cases means that the investigators’ view risks being very one-sided. We recommend greater and earlier publicity so that all involved parties have an opportunity to express their views in a timely manner.

62. Finally, there is a reluctance on the part of the Commission’s investigators to acknowledge the impact of anti-competitive behaviour on trade defences. We therefore recommend to formalise, and to render compulsory in certain cases, consultations of DG Competition by DG Trade. We believe that such a mechanism would be very efficient to take better account of competition law arguments, for example if the complaint is made by a dominant player or a merged group whose merger was recently cleared under conditions.

Note: each author is responsible for his/her own section in the following chapters. The editors have only the role of organising and coordinating the contributions as far as possible.

The editors would like to express their sincere appreciation to the dedicated team of lawyers who patiently and persistently synchronised the chapters of this book – thanks to Lauren Battaglia, David Dauchez, Mateo Domecq, John Embleton, Ciara Farrell, Iris Isberg, Nafsika Karavida, Marianna Kinsella and Tom Mylrea-Lowndes.

1 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An integrated industrial policy for the globalisation era - Putting competitiveness and sustainability at centre stage, COM (2010) 614.

Composition of the working groups

Antitrust Law in Times of Economic Crisis

José Rivas (co-ordinator), Jan Blockx, Raphael De Coninck, Frederic Depoortere, Pablo Figueroa, Andrés Font Galarza, Laurent Garzaniti, Donald C. Klawiter, Anneleen Straetemans, Mario Todino, Geoffroy van de Walle de Ghelcke and Annagiulia Zanazzo.

Kris Dekeyser, Head of the Antitrust Case Support and Policy Unit in DG Competition of the European Commission, drafted Part II of the Chapter. Donald C. Klawiter, Partner in the Washington, D.C. office of Sheppard Mullin Richter & Hampton LLP, drafted Part III of the Chapter The views from the USA.

At the conference, on 8 November 2012, Jose Rivas chaired a panel with the following rapporteurs: Frederic Depoortere, Geoffroy van de Walle de Ghelcke, Mario Todino, and Laurent Garzaniti, and panelists: Kris Dekeyser, Jan Blockx, Andrés Font Galarza, and Damien Geradin.

Merger Control in Times of Economic Crisis

Robbert Snelders (co-ordinator), Hans Zenger, Enrique González Díaz and Éric Barbier de La Serre.

At the conference, on 8 November 2012, Robbert Snelders chaired a panel with the following rapporteurs: Hans Zenger, Enrique Gonzalez Diaz, Eric Barbier de la Serre and panelists: Götz Drauz and Jorge Padilla.

State Aid Enforcement in the Financial Sector in Times of Economic Crisis

Jacques Derenne (co-ordinator), Florine Coupé, Damien Gerard, Hans Gilliams, Ulrich Soltész, Andreas von Bonin, James Kavanagh, Lorenzo Coppi, François-Charles Laprévote, Leonardo Armati, Edurne Navarro Varona and Luis Moscoso.

At the conference, on 8 November 2012, Jacques Derenne chaired a panel with the following rapporteurs: Hans Gilliams, Ulrich Soltész, Andreas von Bonin, James Kavanagh, Lorenzo Coppi, François-Charles Laprévote, and panelists: Nicola Pesaresi, Paris Anestis, Damien Gerard, and Edurne Navarro Varona.

State Aid Policy in the Real Economy in Times of Economic Crisis

Massimo Merola (co-ordinator), Luisa Affuso, José Luis Buendía Sierra, Luigi Cappelletti, Guillaume Fabre, Thomas Jestaedt, Gianni Lo Schiavo, Eric Morgan de Rivery, Alix Müller-Rappard, María Muñoz de Juan, Simon Pilsbury, Marc