La nécessité d'un droit mondial de la concurrence
SUMMARY THE NECESSITY OF A GLOBAL COMPETITION LAW The intensification of international trade, the increasing number of national (or regional) competition laws and the tendency to their extraterritorial application have increased the risk of contradictory decisions by national competition authori...
Enregistré dans:
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| Format: | Article ou chapitre numérique |
| Langue: | Français |
| Publié: |
2004
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| Accès en ligne: | Accès Université d'Orléans et IFPM Accès Université d'Orléans et IFPM |
| Résumé: | SUMMARY
THE NECESSITY OF A GLOBAL COMPETITION LAW
The intensification of international trade, the increasing number of national (or
regional) competition laws and the tendency to their extraterritorial application
have increased the risk of contradictory decisions by national competition
authorities. Besides, the accumulation of uncoordinated requirements imposed by
coexisting national competition codes causes considerable costs at the expense of
enterprises which are internationally active, not only but especially in the field of
merger control. The problems arising can be tackled on a unilateral, bilateral or
multilateral level. The article shows that the unilateral and bilateral approaches
have their merits, but are not sufficient to resolve the fundamental questions. The
same is true for the efforts made so far on the multinational level, e.g. within OECD,
UNCTAD or the International Competition Network (ICN). Their activities are
certainly useful to strengthen the co-operation between national cartel authorities
and to create a global competition culture. However, these institutions did not reach
a breakthrough in eliminating conflicts due to the diverging national competition law
codes in the world. Only the WTO seems to have the capacity for adopting world
competition rules of a universal and binding character. Certainly, the obstacles to
a « TRAMs »-Agreement (Trade-Related Aspects of Antitrust Measures) seem to
have grown after the failure of the Cancún Ministerial Conference in September
2003 : Now, not only national concerns of sovereignty have to be overcome. But the
« Singapore Issues » have definitely become part of a negotiation package which will
be untied only if a solution will be found for all components, including more
appropriate rules for agricultural products. Nevertheless, this new connection is not
only negative : As the history of trade rounds shows (with the TRIPs-Agreement
being the most prominent example), solutions for particularly controversial subjects
can be achieved if opponents are compensated for their consent by concessions in
other trade matters. Therefore, the reluctance which can be observed in the field of
transnational competition rules, should not discourage, and – above all – not inspire
a too modest approach. A future multilateral WTO-competition agreement should
contain not only the Doha elements (core principles like transparency, non-discri-mination and procedural fairness, provisions on hardcore cartels, appeal for
technical assistance and capacity building), but in addition rules on the abuse of
dominant positions and on vertical restraints which segregate national markets.
There is no convincing reason why the WTO dispute settlement should not be applied
to a competition law agreement. Regarding merger control (and private litigation),
an agreement on specific rules seems out of reach. Works in other fora on the
harmonisation of notification forms and procedures should be continued. At the same
time, a restricted number of WTO-members could – in a plurilateral agreement –
pave the way for the inclusion of merger control rules into the WTO system. As
regards developing countries, their own interest militates for strong competition
rules : Very often, these countries are the victim of international cartels or of bid
rigging connected to public procurement. Concerns, that the non-respect of a WTO
competition agreement could trigger cross retaliation in other areas, can be
dispelled by the adoption of appropriate clarifications (no mandatory prosecution of
cartel offences, flexibility in cartel exemptions, legitimacy of a national industrial
policy, etc.). The problem of scarcity of resources can be met by delegating
competition law enforcement to the regional level. If no valid reasons speak against
world competition rules, there are strong arguments in favour of it. The widespread
estimation has to be mentioned that the process of globalisation necessitates better
rules on the international level. The economic system of market economy yields the
best results only if certain conditions are met. An effective competition policy is one
of these. The adoption of such rules within the WTO system would be an important
response to the critique of globalisation by underlining that the expansion of
international trade is subject to a framework striving to maximise not only private,
but also public welfare. |
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