Corporate & Securities Law

Barnett Speaks in Germany

By Manfred Gabriel

Thomas Barnett, the Assistant Attorney General for Antitrust, gave a speech in Germany yesterday, during the celebration for 50 years of the German Competition Act. Did you know that the Germans had premerger notification before the U.S. did? Here is a taste from the speech:

Dr. Franz Bohm, a prominent German thinker and champion of the ARC, once observed that ‘a free market economy resembles a monarchy in that the consumer is the king.’ In substance, this sentiment closely mirrors the U.S. commitment to consumer welfare as the foundation of a free market.

With the adoption of the ARC, the newly-established BKA instantly became the preeminent model of an independent, court-like expert administrative body. The BKA’s first President, Dr. Eberhard Gunther, held his post for eighteen years — an extraordinarily long tenure — and set the BKA on a firm foundation. One of the great strengths of the German antitrust regime has been that the BKA is insulated from political considerations. Any ministerial overruling of its decisions on non-competition grounds is open and transparent, clearly exposing the trade-off between competition and other policies for healthy debate. This has surely been an important confidence-building measure for German consumers and businesses alike.

…
Germany has also played a leading role in the development of EuropeanCommunity competition law as a source of highly-qualified enforcementofficials, having provided the first Commissioner responsible forcompetition policy (Dr. Hans von der Groeben) and a stellar series ofDirectors-General for Competition (including Drs. Manfred Caspari, ClausEhlermann, and Alexander Schaub). And last, but not least, while we in theU.S. often think that we invented premerger notification, in fact theGerman merger notification regime was established in 1973, three yearsbefore our Hart-Scott-Rodino Act, and 16 years before the EC’s MergerControl Regulation.

Barnett then makes some remarks on unilateral conduct, and concludes:

Turning back to the occasion for our celebration today, I emphasizethat overall we have much in common. The BKA has long pursued anti-cartelenforcement, has become a firm proponent of serious economic analysis, andcontinues to expand the role and number of its economists.

The U.S. and German agencies face many common antitrust challengestoday, and we must continue to work closely together in the future.International cartels disrupt the efficient working of our economies, andwe need to expand our cooperation even further, coordinating our leniencyprograms and ensuring that our criminal and administrative approaches worktogether to achieve maximum deterrence. The role of private antitrustenforcement seems likely to grow in Germany, and the European Union as awhole, and European courts thus will have to address some of theprocedural, jurisdictional and comity issues that have already arisen inU.S. courts.

Full post as published by Antitrust Review on January 16, 2008 (boomark / email).