NEW FRONTIERS OF ANTITRUST 2016

Interview with Andreas Mundt

Concurrences Review will organise the seventh edition of the New Frontiers of Antitrust Conference in Paris on 13 June 2016. Andreas Mundt (President, Bundeskartellamt) was interviewed by Nicolas Petit (Professor, Law School of the University of Liege). They will participate in the panel “Rebates: To hell with consumers!”.

To see the full programm, please visit the event website.

Nicolas Petit: As the chairman of a NCA not bound by the Guidance paper, what would you internally advise to your teams involved in rebates cases? Keep applying the Guidance Paper AEC test as blueprint, take it as an influential set of guidelines or envisage it as a “tool amongst others”?

Andreas Mundt: The Guidance paper is what it is: A paper laying out the Commission’s priorities when enforcing Article 102 TFEU, and as such not binding on the national authorities. It is certainly influential: The Commission plays a crucial role when it comes to developing the application of the European antitrust rules, so what is says about its priorities in the abuse area is noteworthy per se.

However, our primary source of guidance for the application of Article 102 is and remains the case law of the European courts. This is what our case handlers at the Bundeskartellamt will first look at when assessing a rebates case.

Nicolas Petit: In terms of substantive guidance, what would you like the ECJ to tell us in the Intel appeal?

Andreas Mundt:  After last autumn’s judgment in the Post Danmark case, I personally consider the ECJ’s approach quite settled: Cost-based analysis is a major component of the analysis of selective pricing, predatory pricing and margin squeeze cases. In rebates cases, however, cost-based analysis is less essential: Other aspects of the case – such as were present in the Danish case that led to the Post Danmark judgment – may very well suffice in themselves to establish the abusive nature of a rebates scheme.

I do not quite see what the ECJ judgment in Intel could add to this. From what I understand about the facts that the Commission established, this was a prime example of a case with ample evidence of illegality even before a cost analysis. In a situation like this, a legal requirement to do a cost analysis would appear as a wasteful belt and braces approach. There will perhaps be rebates cases that are more equivocal, but Intel would not seem to be it.

Nicolas Petit: Germany is the birthplace of ordoliberalism. This ideology has been said to exert a strong influence on the interpretation of the EU antitrust prohibitions. Is it also the reference framework of the German authority in abuse of dominance cases?

Andreas Mundt:  For me ordoliberalism is not so much an ideology but a thoughtful, reasonable and up to date framework for the German economy. And it has been a quite well functioning framework for Germany for more than 50 years.

Having said that, I am not a big fan of sticking labels to enforcement approaches, including our own. The fact that as a competition agency we are embedded in a certain economic framework does certainly not mean that we stick to old routines and ignore new developments. Being aware of our ordoliberal roots didn’t prevent us from refining our economic toolbox and further developing our economic approach. Another main reference framework for our enforcement of the EU antitrust prohibitions is of course the ECJ’s case law. In my view, the ECJ has done a tremendous job over the last fifty years of taking up impulses from various schools of thought and amalgamizing them into our unique European way of approaching antitrust issues.

Going forward, I think we should just continue down that road: It is the only way to have a successful antitrust policy, in a Union as diverse as ours. Of course, this includes contributing our own, local perspective to any discussion on how our common antitrust law should move forward.