Interlocking Directorates and Anticompetitive risks: An Enforcement Gap in Europe? by Thepot F., Hugon F., and Luinaud M. Concurrences No

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1 Interlocking Directorates and Anticompetitive risks: An Enforcement Gap in Europe? by Thepot F., Hugon F., and Luinaud M. Concurrences No Discussion by Panagiotis N. Fotis Commissioner, Hellenic Competition Commission CRESSE th International Conference on Competition and Regulation Rhodes, Greece 2 July 2016

2 What the authors believe 1. The authors state that Regulation (EC) 139/2004 on concentrations between undertakings as well as articles 101 & 102 TFEU are too limited in scope to deal with the anticompetitive risks (Unilateral and Coordinated) of interlocking directorates. 2. Therefore, there exists an enforcement gap regarding the control of interlocking directorates within Europe. 2

3 The purpose of the paper Given authors belief the paper attemps to answer the following question: can corporate/security law and principles of corporate governance effectively supplement competition law in preventing the negative effects of interlocking directorates? 3

4 How to achieve the purpose of the paper Authors analysis focuses on multiple horizontal interlocks and the anticompetitive risks they are likely to introduce in a National or European context 4

5 The notion of Interlocks Interlocks: Common members (or CEOs) in the Board of Directors (direct interlocks). Typical examples France and Germany Common representatives in a non affiliated company or companies (indirect interlocks) two or more companies are linked through different people having a common origin (indirect interlocks) financial ties between competitors 5

6 The connection between Minority shareholdings and Interlocks The anticompetitive effects of interlocking directorates traditionally arise with the acquisition of minority interests, granting the acquirer a seat on the board of the target. 6

7 Effects of Horizontal interlocks Coordinated effects of horizontal interlocks sharing sensitive information among competitors Unilateral effects of horizontal interlocks Reduction of the competitors incentive to compete in the market Interlocks affect key principles of corporate governance The efficiency gains of interlocking directorates Reduction of the uncertainty means, under certain conditions, increase of economic well-being for consumers. The exchange of information can create synergies in the control and management of companies Reduction of asymmetry of information 7

8 Interlocks under corporate law In France, the issue of interlocking directorates is mentioned in article L of the French Commercial Code, limiting to five the number of appointments held simultaneously. However, these restrictions apply only to executives in the country and not to all board members. 8

9 Interlocks under corporate law The recent "Macron law" (No of 6 August 2015) in France has reduced that number to three appointments for public companies. "The board member of a public company may not hold more than two other appointments in public companies outside of his own group, including foreign companies." However, the code remains surprisingly silent on conflicts of interests arising from board members sitting on the boards of competitors and is, in this sense, of little help for competition law. 9

10 Interlocks under corporate law In the Netherlands, the (binding) code of corporate governance prohibits any conflict of interest and also limits the number of appointments held. In Germany, shareholders of limited companies who are members of the Supervisory Board can only appoint managers, who are not accountable to the Supervisory Board, while shareholders are subject to strict controls of their right to access sensitive company information where such access may be against the interests of the company. 10

11 Interlocks under corporate law Italy is the only country having adopted specific regulations entitled "Protection of competition and cross corporate ties in the banking and finance industry to deal with the anticompetitive effects of interlocks among competitors 11

12 Principles of corporate governance: The French case The duty of loyalty of the chief executive is limited to the negotiation of agreements (...) "in the same industry" and therefore does not apply to all anticompetitive risks, such as the exchanges of sensitive information. General principles of corporate governance, although minimally helpful on the issue of interlocking directorates, have only a limited impact. 12

13 Conclusion on the scope of competition law The coordination effects of interlocks may not be reviewed under Article 101 unless a meeting of the mind can be established, the evidence of which can be difficult to find and evaluate if it occurred during a board meeting. The unilateral effects may not be reviewed under Regulation (EC) No 139/2004 of 20 January 2004, unless the interlocks are linked to an acquisition giving rise to a lasting change of control. Article 102 is of limited recourse, due to the narrow and inadequate analytical framework of a violation, to 13 capture the unilateral effects of interlocks.

14 General Conclusion of the Authors Competition law, as well as corporate or securities law, provide narrow and incomplete responses to mitigate the risks of reduced competition and potential conflicts of interests in industries where competitors have multiple interconnected ties. Absent a convergence between these bodies of law to deal with corporate ties and interlocking directorates, the prevention of and enforcement against such anticompetitive practices will remain largely ineffective at both the national and European level. 14

15 Authors Proposals for narrowing the enforcement gap surrounding the issue of interlocking directorates 1. If the corporate laws of Member States seem to provide ex ante solutions to the problem, corporate laws have specific objectives compared with those of competition law. 2. If the introduction of a EU wide prohibition of interlocking directorates among competitors, similar to that existing in the US, seems difficult to contemplate, a sensible limitation of interlocking directorates, based on an in-depth public debate, could be the first step towards building a regulatory system

16 Discussant s Questions Can we adopt a more ambitious and harmonized EU corporate law? And if we can how this conflicts with the already existing, but different National laws? Is EU the same as US? And if it is, how possible is to construct a regulatory system which its effects can easily reach the limits of competition law and involve the provisions of corporate and securities laws dealing with corporate governance? 16

17 Discussant s Questions The one million dollar question: Are corporate/security law and principles of corporate governance supplements or decisive tools regarding the anticompetitive risks of Interlocks? The one million dollar answer: Obviously they constitute decisive tools if they are involved in the proposed regulatory system. 17

18 What the Discussant has to say about Authors proposals Corporate Law may be a supplementary, but not a decisive tool of the Competition Law as it concerns the anticompetitive effects of Interlocks. BUT Competition tools (Merger Regulation, Articles 101 & 102 TFEU, Regulation 1/2003) are sufficient ways for controlling minority interests (both shareholdings and Interlocks) and the existence of an enforcement gap in EU competition law regarding potential anticompetitive effects from them has not been confirmed so far. 18

19 Discussant s Proposal A limited awareness of the risks: see also Germany (case law: Xella Baustoffe case), Austria (Cartel Act, section 7 CA) Table 3 in Fotis and Zevgolis, 2016, p. 78, Case law across Member States (Fotis and Zevgolis, 2016, p ). 19

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