Today, I submitted my LL.M. thesis! It is a satisfying feeling to be done with it all. I won’t bore you with all the bloody details, but in case you were curious, here’s the Abstract. Enjoy!
The current working relationship between the European Union and United States was formalized in 1990 with the Transatlantic Declaration on EC/US Relations. Shortly thereafter, the two entered into the 1991 Competition Partnership Agreement. In 1998, the competition partnership evolved with the conclusion of the Positive Comity Agreement. Despite the intent to cooperate in the elimination of the full range of anticompetitive activities, the operational partnership under these agreements has been limited to merger control. The European Commission maintains cartel cooperation has been carved out of the effective relationship due to an inability to exchange confidential information with US competition authorities – a limitation which does not exist in merger control due to waivers.
This contribution does not address merger control. Rather, the main focus is the lack of effective cooperation in the elimination of cartels, and how failure to exchange confidential information enables collusive activity to continue undetected. Support for this argument is framed within the context of the 1991 and 1998 Agreements, while arguments for exceptions to confidentiality are advanced, using trade secrets as an example. Each argument gleans support from US legislation, EU Regulations 17/62 and 1/2003, EU Directive 2013/0813, the EU/US 2003 Mutual Legal Assistance Agreement, the pivotal 1991 ECJ case France v Commission, and finally, the recent EU/Swiss Second Generation Agreement.
This contribution identifies three mechanisms available to quash the Commission’s argument that EU/US exchange of confidential information in competition-related matters is impossible. Utilizing these mechanisms, the final chapter calls for an immediate sharing of confidential information between EU and US competition authorities. Alternative calls for action include an EU/US Second Generation Agreement allowing for the exchange of confidential information between competition authorities. The creation of a joint EU/US Competition Forum is proffered, while simultaneously rejecting the idea of a global competition court.
(For those interested in obtaining a copy of my thesis, please feel free to leave a comment below with your name, email address and the purpose of the request. All of your information will remain confidential, and I will not publish the comment. If granted permission, you will receive an email from me. Thanks.)