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From Antitrust Law Daily, February 21, 2018

Antitrust chief says relationship between Antitrust Division, DG Comp built on trust

By Jeffrey May, J.D.

Despite differences of opinion on some important issues, such as unilateral conduct, the U.S. Department of Justice Antitrust Division and the European Union’s Directorate General for Competition maintain a relationship built on trust, Makan Delrahim, Assistant Attorney General in charge of the Justice Department's Antitrust Division, told the College of Europe in Brussels today. In remarks, entitled "Good Times, Bad Times, Trust Will Take Us Far: Competition Enforcement and the Relationship Between Washington and Brussels," Delrahim spoke of improvements in the partnership since the turn of the last century. He also noted some areas, including the tech sector, where there still appears to be divergence.

Delrahim reminded the audience of the "general malaise in the relationship" between the antitrust authorities after DG Competition’s decision to block the merger of General Electric Co. and Honeywell, Inc. in 2001 when the Antitrust Division had conditionally approved the deal. "These divergent outcomes in the GE-Honeywell merger led to a difficult point in transatlantic antitrust relations," Delrahim noted.

There are still differences of opinion, Delrahim acknowledged, but the agencies continue to work to narrow the differences on policy and substance. He noted that differences between the agencies have narrowed considerably, particularly on the merger front. "We may not reach the same conclusion on every merger review, but hopefully our mature relationship and close cooperation make differing conclusions less discordant," the antitrust chief remarked.

Delrahim pointed to considerable cooperation on 30 merger and civil non-merger matters, including some of our most high-profile matters like the proposed combination of Baker Hughes Inc. and Halliburton Company, Technologies Corporation’s acquisition of Goodrich Corporation, and the eBooks case.

Unilateral conduct in digital markets. The differences that remain also were identified. In an apparent reference to the EC’s investigation of Google, Delrahim pointed out differences in analyzing unilateral conduct in digital markets. "We continue to advocate for an evidence-based approach based on existing theories, which are sufficiently flexible to apply to new forms of doing business in the digital economy," said Delrahim. "Where there is no demonstrable harm to competition and consumers, we are reluctant to impose special duties on digital platforms, out of our concern that special duties might stifle the very innovation that has created dynamic competition for the benefit of consumers," he added.

Standard setting. Delrahim also suggested that there may be some distance between his position on the role of antitrust enforcement in the standard setting context and that of some of his European counterparts. "I worry that we have strayed too far in the direction of accommodating the concerns of technology licensees who participate in standard setting bodies, very likely at the risk of undermining incentives for the creation of new and innovative technologies," Delrahim said. "To the extent a patent holder violates its commitments to a standard setting organization, remedies under contract law, rather than antitrust remedies, are more appropriate to address licensees’ concerns."

The remarks echoed Delrahim’s comments in a November 2017 speech entitled "Take It to the Limit: Respecting Innovation Incentives in the Application of Antitrust Law." In those remarks, delivered at the University of Southern California Gould School of Law, the assistant attorney general pledged to "foster debate toward a more symmetric balance between the seemingly dueling policy concerns between intellectual property and antitrust law."

Delrahim closed his remarks to the College of Europe by stating that, despite differing views expressed by enforcers on the two sides of the Atlantic, the shared trust between Washington and Brussels would take the authorities far.

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