IMPLICATIONS OF COMPETITIVE NEUTRALITY FOR
COMPETITION AGENCIES: A PROCESS PERSPECTIVE
OECD, 17 June 2015
Prof. Nicolas PETIT
Outline
1.
2.
3.
4.
5.
6.
7.
Conceptual framework
The State-related firm as defendant
The State-related firm as complainant
The State as “third party”
Debiasing tools
Advocacy
Conclusion
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1.
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Conceptual framework
A State-related firm must not be unduly advantaged in
proceedings that take place before the competition agency of
its domestic State
Advantages at four possible stages
 Case-selection
 Investigation
 Evaluation
 Remediation
State-related firm: ownership, control, subsidies, entrustment,
regulatory devolution
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2.
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The State-related firm as defendant
No undue procedural humility vis-à-vis State-related firms
that are defendants in competition proceedings
Coordinated conduct
 Cartels in financial services v public rescue measures
towards banking institutions
Unilateral conduct
 Utilities: fines v systematic regulatory approach
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3.
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The State-related firm as complainant
No undue procedural zeal when a State-related firm is
complainant
Coordinated conduct
 Heightened severity for bid rigging in public procurement?
Unilateral conduct
 Specific scrutiny for pharmaceutical and medical devices
sectors?
 By object liability for abuse of originating companies?
 Higher fines (French Plavix case)
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4.
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The State as « Third Party »
Outsider that seeks to influence competition proceedings
Competition agency unwillingly strays from competitive
neutrality
Merger control
 State wants to thwart merger: additional conditions that
create remedial « fatigue » (GE/Alstom)?
 State wants to secure merger: plays « white knight »
upfront buyer?
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5.
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
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Debiasing tools
Institutional approach
 Expatriation
 Judiciarization
Substantive approach
 Stricter normative rules for State-related companies?
 EU approach
Procedural approach
 Competitive neutrality as due process requirement
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6.
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Advocacy
CN distortions that cannot be typified as a competition
infringement
 Entry regulation, mandatory standard, entrustment
 In advocacy, storytelling matters
 Link with secondary line injury discrimination (101(d) and
102(c) TFEU)?
CN distortions typified as anticompetitive conduct, but
exonerated
 State action doctrine, professional services, SMEs
derogations
 « Spirit » theory ?
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7.
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Conclusion
Finding n°1: CN distortions more likely to occur through tacit
biases and routines in decision-making
Finding n°2: orthodox application of competitive neutrality as
constraint on agency discretion
Finding n°3: strict application of competitive neutrality risks
divorcing agency from big economic picture
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Thank you!
Twitter account: @CompetitionProf
Liege Competition and Innovation Institute (LCII)
University of Liege (ULg)
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