Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Wrapping up the week (on SEPs, Uber, Tesla, lawyer moves and legal rankings)

with 5 comments

This week’s blogging inactivity has had a lot to do with a pile of new and old work, the fact that I’m moving houses and have the in-laws here (a painful process; the moving, I meant), the fact that I devoted some time to watching two Spanish teams get to the Champions League’s final (I guess Germans and English will now put increased pressure on the ongoing State aid investigation) and the fact that we had some farewell events for one of my closest friends and colleagues (this guy, who is moving to the Commission).

So, here’s a quick overview of some stuff we couldn’t cover:

- The news of the week was the adoption by the Commission of decisions in two much talked about SEPs cases. The Commission made binding the commitments proposed by Samsung (see here for our initial comment on these) and -as we anticipated last week- adopted a decision declaring an infringement on the part of Motorola, which did not receive a fine. The Commission has sough to introduce some clarity on a matter in which the industry couldn’t agree by providing a safe harbour for standard implementers/willing licensees. We might discuss these more in depth in the coming weeks. For the time being, the Commission’s FAQ’s are available here . The Commission’s decisions might have brought additional clarity to the industry, but they also will have side-effects on conference organizers and on certain academics, lawyers and officials, all of whom will now have to find a new topic to talk about  :) [Btw, WordPress' new smiley faces are much uglier than the older ones..]

- I also see that the controversy surrounding Uber continues.  To date I don’t think  anyone has brought up a potentially very interesting EU competition law aspect to the case (other than the cartel accusation launched by Neelie Kroes in her most unusual blog post). It’s always surprised me how little we take advantage of the potential of EU law to challenge public restraints on competition…

- On a sort of related note, I was glad to read that 3 FTC staff directors have decided to intervene (albeit informally by means of a blog post; does everybody do blog-policy these days??) against unjustifiable prohibitions on Tesla to sell directly to final customers (that story would merit an ad hoc post) (btw, some people wrongly blame antitrust law for those restrictions: see here).

- There were recent moves at Covington&Burling, this time on the opposite direction as the most recent ones. The firm has hired one of our Friday Slotters (Johan Ysewyn) as well as re-hired Peter Camesasca, who was working with his own firm at Samsung during the course of the above mentioned investigation on SEPs.

- [Sort of self promotion alert] Chambers& Partners rankings came out last week and for some odd reason I seem to be the only ranked associate for EU Competition Law under a certainly narrow “associates to watch” category. Since some of you have sent emails in private commenting on this, I’ll repeat my response in public: I’m not going to lie saying that it bothers me, but off the top of my head I could think of a good pile of names to include there (I won’t list them here because my list -like any list- would also be subjective, potentially discriminatory and based on very imperfect information). In addition to that, (i) I always said these things are to be taken with many pinches of salt, and I of course maintain that; (ii) being there might have to do with being at a smaller place with a lot of exposure to clients (who moreover were kind enough to seemingly do positive reviews) and perhaps (I don’t know) with the non-merits based visibility given by this blog; and (iii) my firm’s overall positioning in the ranking is not yet where it should.

In any event, I’m not even sure this is something to be proud of: I guess it only means that I’m the poorest guy in the list…

 

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5 Responses

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  1. On the Uber situation, could the state aid rules be any relevant? After all, the protected taxi companies received an advantage from the State they wouldn’t possibly get under normal market conditions (that is roughly a monopoly guaranteed by the Belgian authorities). State is indeniably involved and you should be able to argue that state resources are at play as well (achieve . I think there is a valid point to be made on why Uber (and other start-ups such as Djump) could rely on Article 107. Any opinion on this?

    Thomas

    6 May 2014 at 2:15 pm

  2. […] Wrapping up the week (on SEPs, Uber, Tesla, lawyer moves and legal rankings) (Chillin' Competition) […]

  3. An alternative way would be to use 106 and 101 TFEU, and categorize them as a cartel protected by regulation (special right), which uses its close ties with the public authorities to boycott new entrant.
    More generally, agencies should step in to protect those new entrants, rather than waiting from complaints => which may actually come from the rent seekers themselves, who will make a sure case that this is “unfair” competition

    Carlos

    7 May 2014 at 11:56 am

  4. Mr. Lamadrid, we would be grateful to know your views on this? Apparently, you and your colleagues Mr Buendia are experts on 107 and 106. Have you been working on this case?

    Carlos

    8 May 2014 at 11:23 am

  5. Thanks, Carlos, but what do you mean by “apparently”? :) José Luis is “slightly” more of an expert regarding those than myself, but I’ll give you my views:

    On the first point: yes, Art. 106 and “special rights” was precisely what I had in mind (Thomas was also close in the first comment when he referred to a “monopoly guaranteed by State authorities”). In my view, the combination with Art. 101 that you mention is only one among various cumulative possibilities.

    On the second point: no, we have not been working on the case (which is why I don’t want to give too much free advice…), but it’d certainly be interesting.

    Alfonso Lamadrid

    8 May 2014 at 3:14 pm


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