Chillin'Competition

For this new edition of the Friday slot, we are thrilled to publish our first interview with a member of the EU judicature, Mr. Marc van der Woude. On this blog, we hold Marc in great admiration. To us, he represents the ‘total’ competition lawyer. In his career, Marc has worked as a Commission official, as a member of the bar, as an academic and now as a Judge. In other words, Marc has seen the discipline from every possible angle. This gives him an unparalleled ability to ‘think’ competition issues with a rich and creative 360° perspective. I am sure most of you will notice this in reading his great interview. On top of this, Marc has made a very impressive appearance in the competition-Oscar winning movie, “The Raid”. Marc’s career is a true source of inspiration for us. We are so so grateful to him that he accepted to answer to our questions.

1. Why do you work in antitrust law? How did you first get into it?

My first experience of competition law was academic in nature. I was taught competition law for the first time by René Joliet at the College of Europe in 1983. The following year I worked as an assistant to Valentine Korah and Robert Kovar who remain brilliant academics approaching competition law in different ways. Valentine Korah tended to focus on the specific facts of the case whereas Robert Kovar had a broader approach focusing on the system as a whole. My first practical experience dates back to 1986 when I started to advise companies occasionally alongside my job as a lecturer of economic law at the University of Leiden. Ever since I joined DG COMP in 1987, competition law matters have been my daily bread and butter.

2. What do you like the most about your job?

I am very pleased at the General Court. The large majority of cases we have to deal with are extremely interesting and well presented. I also have the privilege to work on these cases with pleasant and competent colleagues. Exchanging ideas and arguments, agreeing and disagreeing, keep you sharp. In addition, it remains fascinating to see how people of 27 different nationalities and of various professional backgrounds work together in harmony.

3. What do you like the least about your job?

I have difficulties in finding negative aspects of my current job. However, there may be two things which I sometimes find irritating and inefficient: formalism and conservatism. Like many other lawyers, judges tend to have a disproportionate interest in form. Obviously, form is important, but the attention to form and detail should never distract from the substance of a case. Also, lawyers tend to be conservative and feel comforted by the existence of precedents. I am regularly confronted with arguments that do not have any other merit than referring to past practices or customs. This backward-looking mentality is not very helpful, if one wants to increase the Court’s productivity and the quality of its judgments.

4. Any favorite antitrust law books?  And favorite non-antitrust law books?

To be frank, even if I sometimes enjoy reading law books, I rarely read them for leisure. The book on “antitrust and the bounds of power” which Giuliano Amato wrote in the nineties is an exception. He describes in a very simple and concise manner the problem of balancing private and public power in a liberal democracy. This question is at the core of all competition law discussions. Public intervention has a societal cost, but the absence of such intervention as well. Where do you put the cursor for intervention?

It is hard to say what my favorite non-law book is. It depends on my mood. There are three books which now come to my mind. The first is “Het grijze kind” (The grey child) by Theo Thijssen, a Dutch prewar author. It is about childhood endurance: there is no reason to get upset by unpleasant things that will not last. The second book is “Belle du Seigneur” by Albert Cohen. It is about a passionate love story between the secretary general of the League of Nations and the wife of one of his subordinates. The early parts of the book are compulsory reading for all those who work in international institutions. The same holds true for Tony Judt’s “Postwar”. His book is not a compilation of “national histories”, but offers a comprehensive approach of the phases and trends in our common European history.

5. Has your experience at the General Court affected your views on competition law?

No, on the contrary. My experience has reinforced the convictions and ideas that I had before joining the General Court. This is not surprising given my age: the older one gets, the more stubborn one tends to be. Even so, there may be two points worth mentioning. The first concerns time. The cases at the Court are generally about facts dating back a few years. In the meantime antitrust policy evolved rapidly. During a recent seminar on antitrust and economics, I realized that I was getting out of touch with the Brussels daily practice. The second point concerns the judgments in KME and Chalkor. I think that these cases will influence the intensity of the General Court’s review in cartel cases. The question is how.

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

Before changing rules, principles and judgments, I think we need to have a large debate, within and beyond the European antitrust community, about the goals we are trying to achieve with antitrust policy. In my view, we focus too heavily on efficiency, individual firms and specific markets. We tend to forget that antitrust policy also has a wider macro-economic or societal dimension. This wider context is changing rapidly. Europe’s economic and political weight is declining rapidly. For example, when will we see the day that Europe is “carved out” of global transactions? In addition, the new economic powers do not necessarily have the same concept of free and open markets as the EU and the USA. Their competition policies serve other purposes than the ones we pursue at present. Even within our Western societies, growth and competition are called into question as the driving forces of the economy, for example by environmentalists, anti-globalists and critical authors, such as Naomi Klein. Nor should we forget that the origins of the competitive growth model upon which our economies are based, finds its origins in the eighteenth century. This is a relatively recent phenomenon which was preceded by other forms of economic organization. There is no reason to consider that today’s market model is perennial. It is interesting to note that Commissioner Almunia is trying to engage in this wider societal debate by organizing his yearly European Competition Forum.

7. Average working time/week?

To be frank, I do not know. What is work? Does it include legal reading (case law, articles, books), legal writing, speaking at conferences and teaching? Is answering your questions work? Anyhow, I think that my second son, when he was still young, gave the best description of my work: daddy sits on a chair and stares at paper or computer screens. Relying on this sedentary definition, I would guess that my working time per week oscillates around sixty hours a week.

8. Most interesting, intense or funny moment of your career?

This is again a very difficult question to answer. I think the best moment concerns my victory in a Belgian pro bono case. This assignment consisted in suing a judge, because she had forgotten about a deadline when she was still a private practitioner. This error implied that the policeman, who had been her client, could no longer contest his dismissal before the Council of State. My position was uncomfortable: as a Dutchman registered at the French speaking bar, I had to sue a judge who happened to belong to local establishment and who was defended by seasoned lawyers. The quantification of damages was also a tricky issue: would my client have won his case before the Council of State if the deadline had been respected? On appeal, I decided to change tactics. I no longer discussed the chances of success of that case. I simply argued that my client had been deprived of the possibility to be heard, whereas he and his family desperately needed their day in court. Ruling on my request for a symbolic compensation for this moral damage, the Court of Appeal granted my client several hundreds of thousands Belgian francs. I also got the best legal fees which a lawyer can think of: gratitude. I received a nice charcoal drawing of the Palais de Justice of Liège made by one of the daughters of my client. The drawing is in my office. I look at it during moments of doubts. It gives me the comfort that justice can be done.

9. Your role model (if any) in the antitrust community? And outside of it?

There are no names which directly jump to mind. Generally speaking, our community is a relatively decent one, especially if compared to certain categories of commercial lawyers. Antitrust lawyers and economists often have academic, intellectual or artistic interests and tend to be conciliatory. I think the reason for this positive feature of our community probably lies in the difficulty we often have in explaining the ‘raison d’être’ of our profession. External pressure helps to create a form of solidarity.

10. What you like the most about economics in antitrust law? What you like the least about economics in antitrust law?

These are bizarre questions. You cannot dissociate antitrust law from antitrust economics. Some cases need more economic analysis than others. This being said, in all cases facts should prevail. Economic analysis is not an end in itself. It is a tool that allows judges to apprehend and understand the facts.

11. What career/personal achievement are you most proud of?

See answer to question 8.

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

I would probably still be what I was two years ago: a lawyer in a Brussels law firm also teaching at Rotterdam University.

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

I swim three to four times a week to keep the hardware in shape. During the weekend my wife and I enjoy the long walks with our dog in the beautiful Luxembourg forests.

14. Favorite movies?

Ladri di Biciclette by Vittorio de Sica. I saw it for the first time as a child in the sixties. I still have difficulties in controlling my tears when watching the scene in the restaurant.

15. Why didn’t THE RAID win an Oscar?

That is a very good question. There are still many injustices in this world. I therefore suggest, for the next intergovernmental conference, that jurisdiction is bestowed on the General Court to contest Oscar-related matters before the chamber in which I happen to be.

16. Favorite music?

When depressed : In a sentimental mood played by John Coltrane accompanied by Duke Ellington. When joyful : Seven Come Eleven by Herb Ellis and Joe Pass.

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

Apart from our own websites and search engines, Google News, DG COMP, Bloomberg and Reuters.

18. A piece of advice for junior competition professionals?

Always bear in mind that (antitrust) law is not just a way of making money. It has a societal function to which all of us have to contribute.

19. Your favorite motto?

It is a Dutch one: “als het niet kan zoals het moet, dan moet het maar zoals het kan”. I leave the translation to you.