Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for March 2012

The Friday Slot (8) – Johan Ysewyn

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For this eighth edition of the Friday Slot, Chillin’Competition has interviewed Johan Ysewyn (Clifford Chance). Our readers willing to improve their presentation skills should once attend Johan’s seminar on cartel law at the Brussels School of Competition (BSC). With his partner in crime Ewoud Sakkers, they have managed to craft a real attractive seminar which combines high-level competition law teaching with role-playing. Both instructive and hilarious. And each year, the students’ evaluation reach sky-high levels. All of this to just say that the powerful and humourous Johan denotes within the grey world of the legal community. We are immensely proud to have him on this slot. Enjoy!

PS: In a gesture of solidarity with our fellow Spanish professor who got sued for defamation on his blog, Chillin’Competition will be closed next week. This decision has nothing to do with the fact that Alfonso will be away in Croatia with ‘Ms Lamadrid’ nor with the fact that I will be skiing in France.

Oscar” of the best competition law book?  And of the best non-competition law book?

The Oscar for the best competition law research book still goes to Korah’s yellow book.    I kept my edition from my College of Europe days and although the last edition dates back to 2007, it still is a great – and to the point – introduction to the competition law field.   Judge Bork’s “The Antitrust Paradox“, has been mentioned already by a number of my co-Friday slotters and remains an essential read.   The idea that antitrust laws should be about protecting competition rather than competitors seems to be still a novel concept for a number of competition authorities.

A more fun competition-book is Christopher Mason’s “The Art of the Steal” which gives the background and history to the Christie’s/Sotheby’s cartel and is really a good “thriller”-type read.   Highly recommended.

On the non-competition side, I have started reading some of the French modern literature.  Jonathan Littell’s “Les Bienveillantes” is simply a must-read in dealing with the darkest period of the 20th century.  Am also a big fan of Amélie Nothomb, especially where she describes the cultural clash between East and West.   “Stupeur et tremblements” is an essential read for those of you who have Japanese clients.  A friend recommended me Michel Houellebecq – La Carte et le territoire – but haven’t got beyond the first 20 pages yet.

Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

Oscar of the best case-law development: All of the cartel judgments of the last year where the Commission is being criticised for misreading/misinterpreting the evidence.   Finally.

Oscar for the worst case-law development: Pfleiderer.  Commission now needs to legislate to avoid leniency statements being disclosed, something which strikes me as a no brainer.

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

  • Find a comity-rule for multi-jurisdictional merger filings.  What a waste of time and money.   Good for law firms but the benefit of having 20 countries or more looking at a merger – where some of them only have a tangential interest escapes me;
  • Reinforce internal checks and balances within DG Comp.  They have been slipping on that.   And yes, I know we’d all look to split the decisional and the investigatory layer but I am a realist;
  • More judges in the GC, resulting in speedier appeals.

Average working time/week?

I have realized that hours in the office and efficiency don’t necessarily match up.

Why do you work in competition law? How did you first get into it?

As many people from my generation, I started off doing a lot of general EU-type work as well as commercial work.   There was the Internal market push by Delors – 1992 remember – and there was lots of advisory work on distribution contracts and the like.   But things were changing.  The  Merger Regulation had just entered into force and national authorities were being set up all over Europe.   So there was simply more competition work to do.

And yes, I enjoy it too.   Saying that it combines law, economics and policy is so cliché – but it is true.

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Written by Nicolas Petit

30 March 2012 at 9:16 pm

Posted in The Friday Slot

DG COMP publishes its Manual of Procedure

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This is big news.

Click here to download the document: Antitrust ManProc, March 2012

Written by Alfonso Lamadrid

30 March 2012 at 11:44 am

And the winners are….

with 3 comments

Concurrences and George Washinton Law School presented their Antitrust Writing Awards on Tuesday night in D.C.

The list of winners is available here.

Bill Kovacic was in charge of announcing the winners. We weren’t there, but we can imagine him saying something like: “And the  award to the best academic paper on unilateral conduct goes to…….. Nicolas Petit, for “Credit Rating Agencies, the Sovereign Debt Crisis and Competition Law!l

Yep, Nicolas is the proud winner of the award to the best academic article on unilateral conduct. His piece was also the most publicly voted one (the readers of this blog probably have something to do with that, so thanks on his behalf).

I want to congratulate not only Nicolas, but also all other winners as well as all the authors of all the other articles that had been selected for the competition.

Moreover, we want to congratulate the organisers: Concurrences (in the person of Nicolas Charbit) and George Washinton Law School. The creation of these awards is a fantastic initiative; we hope that they’re here to stay.

A few non-politically correct comments now:

1: To a certain extent Nicolas deserves credit for this prize. Nonetheless, any impartial observer should rapidly realize that I -in my capacity as the manager of Nico’s brilliantly conceived campaign- am the one responsible for his victory.. ;) We’ll ask a credit rating agency who deserves more credit  (wow, this is incredibly bad even for my standards…).

2: The picture illustrating one of our “campaign” posts was premonitory.

3: This must be the first time in a decade or so that a Frenchman wins any competition (except, certainly, for this one) ;)  In fair reciprocity (some background here), I -as a Spaniard- should write a piece hinting that Nicolas owes his victory to doping (which, by the way, was definetely the case since he finished it during a trip to Scotland; this is how his desk must have looked like).

4: How much sense does it make for a paper on “collective” dominance to be awarded the prize to the best article on “unilateral” conduct??   Just kiddin’ here: the core of the paper apparently deals with individual abuses of collective dominance, so it makes perfect sense.

5: You caught me: I just wrote “apparently”. I guess I’ll now have to read  Nicolas’ paper.

P.S. One suggestion for the organizers of the Writing Awards: since client alerts and articles published in newsletters are elegible for the prizes in the “Business” category, why not extend it to blog posts? We also need incentives to compete!

Written by Alfonso Lamadrid

29 March 2012 at 9:43 am

Veggie OD

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Sorry, can’t help it.

It is now the Commission that puts food on the table.

Yesterday, the Commission announced a 169,000,000€ fine in the Freight Forwarders cartel.

On this occasion, it announced that some cartel participants had organised their contacts in a so-called “Gardening Club” and that they had used coded language based on names of vegetables – such as “asparagus” and “baby courgettes” –  when talking about fixing prices…

Thanks again to Aoife White for the pointer

Written by Nicolas Petit

29 March 2012 at 9:33 am

Posted in Uncategorized

Spanish professor sued over a blog post on competition law

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Blogging about competition law is getting dangerous!!

We have just learnt through Competition Policy International that a Professor at the Instituto de Empresa has been sued for defamation because he wrote on his blog that music group Promusicae’s copyright policy is contrary to the competition rules !!

The full story is available here.

I’ll better not comment in order to avoid the risk of being sued too.

Could anyone recommend us a good lawyer, just in case?

Written by Alfonso Lamadrid

28 March 2012 at 5:47 pm

The vertical expression of a horizontal desire

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A few days ago someone sent us a very interesting piece published by Okeoghene Odudu (who is also the author of a great book on Art. 101) in European Competition Journal (August 2011) under the title: “Indirect Information Exchange and the Constituen Elements of Hub and Spoke Collusion“.

Although we have enjoyed the substance of this article, the reason why it was sent to us in the first place was not its content but rather a particular footnote at the very end of it. It reads as follows:

“187.  In his blog posting of 21 February 2011, Nicolas Petit expressed the view that there was nothing worthy of analysis in the hub-and-spoke phenomenon and concluded by writing, “The bottom-line: I will fight any proposal to organise an event on hub-and-spoke agreements. See http://chillingcompetition.com/2011/02/21/much-ado-about-nothing/.”

[*Note by Alfonso: The original post features a smiley face like this :) right after this quoted statement. The face is nevertheless missing in the quote that appeared in the article. It's a pity, because it would have been funny to see the smiley appear in European Competition Journal!].

However, by 24 May 2011 he seems to have had a conversion, announcing that, through the Brussels School of Competition Law, he had co-organised a seminar on information exchange, to deal in part with “Sharing Information through Intermediaries (supply-purchase relationships, distribution agreements, meet and release clauses, hub-and-spokes, etc)”. See http://chillingcompetition.com/2011/05/24/information-exchange-in-eu-competition-law-conference-22-june/

We were surprised at this footnote (since we don’t always take what we write seriously, it’s curious to find out that people do), which nonetheless expresses a very legitimate opinion.

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Written by Alfonso Lamadrid

28 March 2012 at 5:02 pm

Beyond Endives

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As most readers know, Alfonso has been gung ho about endives.

On pain of breaking the anti-food fatwa enunciated yesterday by my learned co-blogger, I must report today the ultimate case in this series of post.

Earlier in the month, the Belgian competition prosecutor issued the equivalent of a SO in a case concerning a “salad” of unlawful exchanges of information. Please tighten your seatbelt. The practices under investigation cover:

  • Candies, including possibly chocolate;
  • Ice-cream;
  • Sauces (BBQ season is coming);
  • Veggie and other stocks;
  • Pet food…

Clearly, the scope of this investigation goes beyond anything reported earlier on this blog.

Thanks to Aoife White (Bloomberg) for the pointer.

One last thing: given my co-blogger’s obsessive focus on food, I suggest that, for our next quizz, chief Alfonso cooks an antitrust dinner to the winner, where endives will be served with flour and BBQ sauce.

Written by Nicolas Petit

27 March 2012 at 7:15 am

Posted in Uncategorized

Enforcement Menu

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It all started with endives.

#endives became a trending topic on this blog. However, after two posts (here and here) we decided that we should prevent endives from turning from a hot topic into a reheated topic. Therefore, we decided to put endives and other gastronomic topics in the fridge for a while.

Then the French sanctioned flour makers in an unsuccesful attempt to lead us to write about croissants. We kept our position: if you want to make headlines on Chillin’Competition, you’ll have to do butter, we said.

The French then brought their big guns out. It has been reported that President Sarkozy attended the presidential debate with one main goal: appear on Chillin’ Competition. And he made it. We did yield to the temptation of posting the video in which he explains the difference between endives and apples Apple and Microsoft (this useful explanation prompted some of our readers to stop wrapping their iPods in ham). Yes we were weak, but the temptation to comment on Sarkozy-sponsored cartels was irresistible.

We saw that post as a last exception; we decided to follow a diet and agreed that there’d be no more food on the blog, at least until the summer was over. “I need to be bikini ready” said Nicolas. I also thought that a strict no-food rule was necessary, particulary since Hump-Pilates  (incredible video…) doesn’t work well for us. We’ll start next Monday, we said.

And now, come Monday, here are the suggested courses topics that we get from our readers:

The Autorité de la Concurrence fines dog and cat food makers € 35 million.

The Autorité de la Concurrence investigates yogurt producers.

Korea Curbs Noodle Cartel.

We have to acknowledge our respect for this multi-jurisdictional multi-product strategy to deviate us from our diet. They’ve managed to make it to the blog again. But seriously, we solemnly promise to forget about food:

As God is our witness, we’ll never be hungry food-obsessed again!

We’ll start our diet…next Monday?

Written by Alfonso Lamadrid

26 March 2012 at 12:01 pm

Posted in Jokes

The Friday Slot (7)- Maurits Dolmans

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This seventh edition of The Friday Slot features an interview with Maurits Dolmans (Cleary Gottlieb). Most of us are aware of his tremendous reputation as a leading antitrust lawyer, but his answers to our questionnaire will reveal facets of his personality and of his life that, until now, remained mostly unknown. It’s a privilege for us to publish Maurits’ bright and most interesting answers. Enjoy!

“Oscar” of the best competition law book?  And of the best non-competition law book?

I do not read competition law books;  I just use them as reference.  A truly memorable “legal” book is Natural Justice by Ken Binmore, with fascinating game theory showing how, for all our competitive spirit, justice and fairness are innate in the human existence – a comforting thought in a turbulent world.

My non-legal favourites are probably Robertson Davies’ Deptford trilogy (The Manticore) and Cornish trilogy (What’s Bred in the Bone).  I re-read these every once in a while – the sign of a great novel.  Recent great reads include The Elegance of the Hedgehog, Robert Merle’s Fortune de France, and Het Woud der Verwachting (a magnificent historical novel by Hella Haasse on the life of Charles d’Orleans).  From more innocent days, I loved reading The Education of Little Tree to our children (writer was a horrible man, but it’s a lovely little book).

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

Best non-case law are the Horizontal Guidelines. Undisputably the best judicial decision is KME v. Commission.  The detailed and intensive review required in merger cases after Tetra Laval  now also applies also to cartel cases.  It is already having effect:   In the hearing on the appeal for Masco in the bathroom fittings and fixtures case in February, the Commission explicitly agreed that the General Court should exercise a complete judicial review over the facts.

The worst is Pfleiderer v. Bundeskartellamt. Leniency statements should not be disclosed. The Court did not distinguish self-incriminating leniency applications from pre-existing documents. That is a mistake and could interfere with public policy to encourage revealing and closing down cartels.

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

  1.  The Commission should recognize privilege for in-house counsel who are full members of the Bar.  Even after AKZO, the Commission has the discretion to do so.  It is even more wrong for the Commission to reserve the right to seek access to legal advice from outside counsel who are members of a non-EU bar.  It is a fundamental right of every client to seek legal counsel in confidence from a lawyer of his/her choice.
  2. To avoid confirmation bias, the DG Comp team that investigates a case and writes an SO should not be the one to make and write the final decision.  The decision should be adopted (or recommended to the College for adoption) by a separate panel chaired by the Commissioner, which should independently review SO and written pleadings and attend oral hearings.  Right now, decisions are adopted by a College of Commissioners none of whom have read the pleadings or attended the oral hearing, based on internal notes written by the team than write the SO, not accessible to the defendant.  I have great respect for the integrity of EC officials, but this process is institutionally unsound.
  3. The “me-too” spirit of international merger control has led to a glut of unnecessary merger laws requiring parallel notifications.  This is a monumental waste of time and resources, combined with a risk (already materializing) that merger control is used by “new authorities” to give advantages to national industries.  Some kind of comity rules should be set out to allow the, say, three jurisdictions most affected to review a case, with others declining or focusing on local product markets.

Average working time/week?

Too long.  Fortunately I love what I do and have an understanding wife, our children have grown up, and the firm has a generous sabbatical and vacation policy.

Why do you work in competition law? How did you first get into it?

It’s intellectually satisfying and relevant.  I have always believed in the European ideal.  Integration of national economies should prevent re-emergence of the old enmities that we have not seen for 67 years, and hope never to see again.

Most interesting, intense or funny moment of your career?

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Written by Alfonso Lamadrid

23 March 2012 at 11:35 am

Posted in The Friday Slot

White Russian

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Photographed yesterday, in Moscow’s metro. I know, I am a real antitrust geek…

Now, more seriously, I am spending the week in white Russia – it has been heavily snowing here – where I teach a course on competition law at MGIMO university. This is the third year I do this. Again, it is a very pleasant experience. I am very impressed by the level of the students.

Teaching EU competition law outside Europe requires some adaptations, in particular when it comes to give  examples. I thus did my homework to get acquainted with the names of (i) national telco incumbent and of the big supermarket chains; (ii) the basic structure of Russian competition law; (iii)  the Customs Union between Belarus, Kazakhstan, and Russia.

A final thing. I made a presentation at Deloitte and Touche Moscow yesterday on recent developments in EU competition law (see link to the ppt below). It is a rather basic presentation. I have to make a similar presentation in several law firms in Brussels in the upcoming months, but I intend to sophisticate it a little. If you have any comment/input/remarks that may help, please write to me.

Recent Developments in EU Competition Law – Deloitte (21 03 12) NP

PS: to avoid any misunderstanding, the title of this post is in relation to The Dude’s favorite drink…

Written by Nicolas Petit

22 March 2012 at 2:23 pm

Posted in Uncategorized

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