Chillin'Competition

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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Last week the European Commission announced the opening of formal proceedings to investigate whether international publishers may have engaged in anti-competitive agency agreements regarding the sale of ebooks (see Press Release). Dawn-raids in connection with this case were carried out last March.

Today´s edition of the Financial Times (edited by Pearson -a publisher affected by the investigation-) features a most interesting piece on a very related topic under the title Don´t make Amazon a monopoly.

Its author -John Gapper- argues that competition authorities in the US and the EU should not challenge the arrangements under which publishers set minimum prices for ebooks and preclude companies such as Amazon, Apple or Barnes&Noble from offering discounted prices. It explains that this is a textbook example of the situation that the US Supreme Court had in mind when it overturned Dr. Miles in its Opinion in Leegin, and submits that it would be paradoxical for competition rules to enable free riding-based discounting on the part of Amazon, thus enhancing its alleged “monopoly”.

This situation and the legal controvery surrounding it raises very interesting questions that go beyond the situation at issue and which have the potential to affect online distribution in general.

Does anyone have any strong views on this?

With rising fines for antitrust violations, there’s been a lot of fuzz about the adequacy of the current EU penalty system.

The EU fines system is generally lambasted on two counts. First, it would be inefficient because the average level of fines currently slapped by competition authorities would still be far below the optimal deterrence level. Second, it would be unfair because it targets companies as a whole, rather than the individuals which have secretly engaged into unlawful conduct. In so doing, administrative fines would thus harm a range of third parties (shareholders, workforce, etc.) which have nothing to do with the infringement. Interestingly, increasing fines to satisfy the efficiency concern would further exacerbate the unfairness concern.

The upshot of this has been a renewed interest for alternative penalties (director disqualification, individual fines, etc.). In a recent paper published in ECLR, our esteemed colleague Prof. Alan Ryley (City University London) puts forward a creative, and somewhat radical proposal:

Thirdly, the expulsion of aliens from EU territory: Most international business executives need to be able to travel into the European Union, the world’s largest single market. Prohibition from entering EU territory for a term of years would make it difficult for them to act as senior level executives, as well as significantly damaging their reputations.

Now a question: beyond preventing business executives from making Xmas shopping in Paris and London – which I do not view as a particularly strong deterrent – I fail to see how this could really dissuade guilty alien executives to operate cartels within the EU. Paradoxically, those executives will be increasingly incentivized to negotiate cartels targeted at the EU outside of the European territory, with the unintended side-effect that the Commission’s will face mounting difficulties to gather evidence of unlawful conduct.

The full reference of Prof. Riley’s excellent paper is “The modernisation of EU anti-cartel enforcement: will the Commission grasp the opportunity?”, E.C.L.R. 2010, 31(5), 191-207, 2010.

Thanks to my assistant N. Neyrinck and my student B. Boggaerts for the pointer.

The picture above is taken from one of the worst French movies ever.

My paper on competition authorities’ enforcement discretion has just been published in Concurrences. Amongst the various papers I published to date, I am really proud of this one. The reason?  It embodies all the things which make research, and academic life, a thrilling job:

1. It forced me to conduct research on a largely unchartered topic, and to propose an original – at least I believe – conceptual framework;
2. I benefited from strong empirical input received from more than a dozen national reporters;
3. The LIDC annual congress – for which I prepared the paper – was a great moment in a wonderful town. I met loads of fascinating people during the congress;
4. We eventually managed, on the basis of this paper, to draft public policy proposals, which were eventually sent to competition authorities.

As to the information: the next LIDC congress will take place in Bordeaux (France), from 30 September to 3 October. To all those interested in learning how competition law and a Lafite Rotschild combine, I recommend the conference. A specific website has been created to advertise the conference.

Finally as the explanation: the past days have been increasingly busy. This explains the belated posting activity on the blog.

I heard in Vienna that Oxford University Press (OUP) will be launching in 2009 the Journal of European Competition Law & Practice. This new bi-monthly journal intends to have a strong practical flavour. It will be edited by T. Lubbig and P. Nihoul and seeks, from what I am told, to compete head-to-head with the well-known European Competition Law Review (ECLR) from Sweet & Maxwell.  Yet, I understand that ECLR has lately focused a lot on national competition law, and that this journal’s purpose is to deal primarily with EC competition law.

Interestingly,it ought to be noted that this new journal is not pure, greenfield, entry for OUP, but expansion with a new title besides, amongst others, OUP’s Journal of Competition Law and Economics (JOCLE). Whilst some may think that OUP’s move is not necessarily safe because the new journal may partly eat away some of the JOCLE readership, I understand the two journals are not substitutes, but complements (with the JOCLE focusing primarily on longer studies, with a stronger scientific, economic and comparative – EC/US – flavour).

My feeling is that OUP’s agressive, ambitious, expansion strategy should be welcome. I have indeed often deplored the paucity of european competition law journals. Let’s just hope that the pricing of this new title will be affordable.