Chillin'Competition

This 9th edition of the Friday Slot features an interview with Damien Geradin (Covington & Burling, TILEC). I owe a lot to Damien. If Alfonso ever did me the honour to invite me on the Friday Slot, I would explain that Damien is the one who really got me into competition law. We met at the College of Europe, where I was his student. Came the end of the year, he offered me a research assistant position in Liege. I took it, and he then taught me how to write, introduced me to the more economic approach of EU competition law and taught me that all established truths – and in particular legal principles – deserve to be discussed. I will never be grateful enough for all the things he brought me. More generally, in the competition community, Damien is known for his many powerful papers on abuse of dominance law. He is also amongst the very few EU law scholars who managed to obtain a teaching position in a US university, and to reach position 40 in the ssrn ranking of top authors for law. We are immensely happy to publish his interview today.  

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

I have never really used any competition law book (as when I am looking for a piece of information, I am rather trying to find the relevant law review article), so it is a hard question to answer.  The Antitrust Paradox of Robert Bork was certainly very influential and a good read, but it was flatly wrong on some points.

Mémoires d’Hadrien by Marguerite Yourcenar is a fabulous historical novel, which I read when I was a teenager. Since then, I have read very many books, but none exceeded the level of perfection and erudition of that book. Albert Speer’s memoir Inside the Third Reich is also a book that needs to be read (as it explains how the unthinkable happened), although I regretted that Speer did not express stronger regrets for his actions.

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

Although this is not a case-law development, I think that the Commission did a fine job with the guidelines on horizontal cooperation agreements. The Commission managed to find a good balance on some complex and sensitive issues.

As to the worst case-law development, the ECJ judgment in TeliaSonera is a terrible piece of work. It will be hard to explain to future generation of students why margin squeeze is conceptually different from refusal to supply, and why the condition of essentiality that must be met in refusal to supply cases doesn’t apply to margin squeeze cases. This leads to patently absurd results.

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. I would split investigative and decision-making functions in EU competition cases. No one would create enforcement agency combining such functions today. There is a large consensus among scholars and practitioners that such a reform is needed even if it is resisted by the Commission. How this should be done in practice is subject to discussion and various modalities could be envisaged. But the principle that no authority should combine investigative and decision-making functions is fundamental.

2. I would create a specialized EU competition tribunal. The quality of the judgments adopted by the General Court varies widely and in some cases specific competition expertise would clearly help. There are arguments against specialization (you can learn from different areas of law, etc.), but the benefits of having a Court composed of competition specialists are very strong. Should such a court be created, I would prevent political appointments. People should be selected on the basis of their merits as to be a judge is a very important function.

3. I would encourage more cross-fertilization between private practitioners/academics and DG COMP. The “revolving door” goes only in one direction with Commission officials leaving the Commission to monetize their expertise in law firms. Hence, the Commission is losing many able officials without having the ability to recruit experienced lawyers from law firms to compensate. Although experienced private practitioners would probably not be interested in becoming permanent Commission officials, they would certainly appreciate the opportunity to work 2-3 years at DG COMP. They would bring very valuable expertise at limited cost.

Average working time/week?

Way too many hours, probably around 75 or so. I am often asked how I split my time between private practice and academia. The answer is simple: I work full time at Covington and academic work comes on top. Now, there is a great degree of cross-fertilization between these different activities and, in any event, I like to teach and write papers so much that abandoning that side of my work is currently unthinkable.

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

I started my career as a regulatory lawyer, but got quickly bored. I was then given the opportunity to teach a seminar on “Network Industries and EU Law” at the College of Europe, and that led me to spend a fair amount of time reading competition cases. A few years later, Aurelio Pappalardo, who was teaching competition law at the University of Liège, became emeritus, and I was offered to teach the course. From that point, I devoted all my time and energy to competition law with regular forays into other disciplines, such as economics and intellectual property.

Most interesting, intense or funny moment of your career?

Before becoming a private practitioner, I was asked on a few occasions to be an expert witness in arbitration cases involving competition issues. I found that being cross-examined by very skilled lawyers was an extremely intense, but also exciting, experience.

As to funny moments in my career, there have been very many. I can’t recall one in particular, but let’s say that it is very hard to stay serious all the time when you have long meetings.

Your role model (if any) in the competition community? And outside of it?

In the competition community, I have great admiration and respect for Sir Francis Jacobs, although he is much more than a competition lawyer. He is brilliant intellectually, and writes concisely and elegantly. On top of that he is a very nice and approachable person. I am also impressed by my Chairman at Covington, Tim Hester, who is not only an excellent competition lawyer, but is also a great leader and a nice man.

Outside the competition community, I have always admired people who stood by their principles whatever the personal consequences. Clearly, people like Nelson Mandela are remarkable, but there are also many other heroes nobody has ever heard of. I also have great admiration for Churchill who had a boundless amount of energy and creativity, and stood against the Nazis at a critical time.

What do you like the least about your job?

The opportunity cost it creates. There are so many things I would like to do, but cannot do because I am too busy. Competition law is a labour-intensive discipline as, however smart you are, you need to fully master the facts, and this takes time.

I also think that lawyers and law firms spend too much time measuring themselves. I detest all these rankings based on PePs and the like as they are meaningless. They also lead some law firms to take short-term decisions, which can have disastrous consequences in the long run. Top law firms should be elitist, but profits and rankings should not be their raison d’être.

What do you like the most about your job?

Certainly the ability to work with talented colleagues. In particular, I have always liked working with junior associates who combine intellect with boundless enthusiasm (that is sometimes lost after a few years of practice). It is also a real pleasure to discover new talents, and I have come across a few in recent years.

What you like the most about economics in competition law?

The ability to conceptualize complex problems. Great IO economists are extremely valuable in difficult cases, the problem being there is a small supply of them.

What you like the least about economics in competition law?

Mind boggling theories disconnected from the real world. These are a complete waste of time.

What career/personal achievement are you most proud of?

As an academic, I dreamed of being given the opportunity to teach at Harvard Law School. When I was offered the opportunity to be a visiting professor there in 2003-4, I felt very honoured.

As a private practitioner, our victory in the Qualcomm case, which was entirely dismissed after a five-year investigation was a great success. I was also very proud of our work in the Microsoft Browser case. Both cases involved great team work. It is a pity of course that members of that team went in different directions following the Howrey meltdown.

A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?

I would be an historian. I wanted to study history at University, but my parents were concerned that this degree would not offer great career opportunities. I therefore settled for law, which after all was another social science. Since then, I have compensated by reading many historical essays or novels, and I have not lost my ambition to study history at a later stage of my life.

Besides being a “competition geek” (sorry for this one, but we all are), what are your hobbies?

Rowing (unfortunately indoor these days as Brussels doesn’t have a great river or lake), reading and watching movies. I also of course like to spend time with my wife and two daughters who are truly wonderful.

Favorite movies?

Schindler’s List, the Shawshank Redemption, and many others.

Favorite music style in general?

Rock’n roll (I love the energy) and soul (which is often very moving).

Your favorite motto?

Who dares wins.

Websites that you visit the most (besides Chillin’Competition)?

I don’t visit many websites, but like social network such as Facebook. It is a good way to stay in touch with friends. Note that I have recently resuscitated the “Antitrust Hotch Potch”, which Nicolas and I managed before he created Chillin’ Competition. It will not be as good as Chillin Competition, but may still be a vehicle to share a few thoughts.

A piece of advice for junior competition professionals?

Give your very best shot, but don’t stay in a law firm if it is not for you. There are many other wonderful professions.