Kim Dietzel is a partner at Herbert Smith Freehills LLP, specialising in all aspects of EU and UK competition law, including merger control, antitrust investigations and criminal cartel cases. She has a particular focus on competition litigation, both in respect of global case coordination and cases before the English courts, and also represents clients before the EU courts in Luxembourg. Kim is a qualified solicitor-advocate and appears as an advocate in the Competition Appeal Tribunal.
DESCRIBE YOUR CAREER TO DATE.
I am a “born and bred” Herbert Smith Freehills lawyer, having started with Herbert Smith as a trainee in the 1990s. I spent some time in our Brussels office, and also on client secondment. Ultimately I have always enjoyed the variety that private practice brings, and the many new challenges that get thrown our way (occasionally too many in a single day!).
WHAT DO YOU ENJOY MOST ABOUT WORKING IN COMPETITION LAW?
Competition law has an important role to play in a free market economy – innovation needs to be encouraged and rewarded but the proper functioning of the market also needs to be protected. It is nice to play a part in that dynamic.
Also, the combination of law and economics has always fascinated me, as does the business reality of this area. Competition lawyers are involved in shaping strategic business decisions, which is incredibly exciting. There is also quite a bit of black letter law involved especially in competition litigation, and the intellectual challenge of that continues to be motivating for me.
HOW HAS THE USE OF CLASS ACTIONS IN THE COMPETITION FIELD IN EUROPE DEVELOPED SINCE THEIR INTRODUCTION?
This is an area of ongoing development. In particular in the Netherlands, the UK and Germany, we see a desire for group litigation (in its various forms) and creative ways in which claimant firms seek to achieve this. There is also a lot of policy support for better group action mechanisms, with a number of proposals going through processes in these jurisdictions and at EU level. Nonetheless, it is still early days including for the class action regime in the UK, and thus a case of “watch this space”.
HAS EU POLICY HAD A POSITIVE IMPACT ON MITIGATING THE EFFECTS OF AND DETERRING CARTELS WITHIN EUROPE?
In my view, yes. Anticompetitive conduct is definitely deterred, and it is often a case of a lack of clarity as to what falls on either side of the line, rather than a deliberate disregard for competition law, that raises issues. With competition follow-on litigation, things may even have gone too far now. Companies that have already paid substantial administrative fines are faced with massive damages actions, which often bear little resemblance to the underlying facts.
WHAT IMPACT DOES PUBLIC PERCEPTION HAVE ON HOW COMPETITION RULES ARE ENFORCED?
This is a big topic at the moment. Can the public relate to and understand what competition authorities are seeking to achieve with their enforcement actions? Is there are a relevance to competition law that the general public buys into? The current European Commissioner understands this, and thus seeks to talk about those cases that she thinks people can relate to. However, there is a lot more that will need to be done in this area.
WHAT IS THE MOST IMPORTANT ASPECT OF COMPETITION POLICY FOR ENSURING A HEALTHY BUSINESS ENVIRONMENT GOING FORWARD?
Clarity and transparency are key, coupled with an effective review mechanism. We need courts that ensure full accountability.
CAN A COMPLEX REGULATORY COMPETITION INFRASTRUCTURE AND AN EFFECTIVE AND ROBUST MARKET CO-EXIST?
Absolutely! We need competition regulation to ensure effective and robust markets persist. Of course we do not want unnecessary complexity, but the regulatory system needs to be sophisticated enough to work within today’s markets, which are often complex.
HOW DOES HERBERT SMITH FREEHILLS DISTINGUISH ITSELF FROM THE COMPETITION?
We have litigation at our core, we are really good at working in teams (both with our colleagues and with our clients), and we keep it fun.
