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European Commission’s literature

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Having to spend a couple of quieter than usual days sick at home, I decided to catch up and so some summer reading on some recent European Commission’s publications.

As you know, DG Comp is quite prolific from a literary viewpoint (I’m not saying that this is because anyone there may have free time). Aside from an extraordinary number of soft law instruments it has also tried new genders, such as show-off comics, and regularly issues other seldomly read stuff.

A first point to be made –and oddly enough I’ve just realized about it- is that the Competition Policy Newsletter has disappeared for good. I don’t know what has led to its termination, but it’s a pity; the articles featured in it often offered interesting insights on how some cases were viewed from the inside. The publication has been replaced by the Competition Policy Brief, which mainly deals with policy issues; not really the same concept.

A great candidate for an article on the Competition Policy Newsletter would have been the case on spare pieces of luxury watches shelved yesterday by the Commission, which did not find an infringement. This marked the first and only time that the Commission has used the claw-back clause provided for in Article 11(6) of Regulation 1; it took the case from a national competition authority (the Spanish) that was on the verge of sanctioning it and now it has  concluded that there is no infringement. [For advertising disclosure purposes: we were active in both the national and EU phases of the case representing a number of the companies investigated].

I’ve also done some catching up on actual decisions. We keep on complaining that the Commission adopts fewer infringement (Art 7) decisions in non-cartel cases than it should and that we lack guidance, but then very few people read the scarce ones there are. How many people have, for instance, read Telefónica/Portugal Telecom, which raises very interesting and never discussed points on the self-assessment of restrictive agreements? The very recently published Motorola decision is also an interesting read for those geeky enough.

Then I skimmed trough the latest set of documents published by DG Comp in relation to the 10th anniversary of Regulation 1/2003, namely the Communication on Ten Years of Antitrust Enforcement under Regulation 1/2003: Achievements and Future Perspectives and the accompanying Staff Working Documents (here and here) Aside from interesting stats on enforcement, these documents contain a cautionary discussion on institutional issues related to national competition authorities (in relation, mainly, to their independence vis à vis political authorities, the necessary appointment of members of the authority on the basis of merit, “amalgamation of competences” risking “a weakening of competition enforcement”). I wonder if they had any specific NCA in mind…  Some of the understatements in these papers make evident a couple of problems; for instance, when the Commission says that the “mechanism by which the Commission is informed of national courts judgments (…) has not worked optimally”, what it means to say is that national courts have completely ignored this mechanism in practice.

But what those documents are mainly about –and they’re right on point- is in identifying procedural divergences across Member States as the next obstacle to tackle. This is a recurrent issue on which I’ve insisted every time I had the chance (both in lectures and papers like this one –the others are in Spanish-). At the present moment, and due to the principle of procedural autonomy, very significant differences remain regarding, for instance, inspection powers, discretion to take on cases, powers to impose structural remedies, regulation of commitment decisions, leniency rules, existence of cartel settlements, procedural rights and calculation of fines. This leads to the result that the application of the same –EU competition- rules is very likely to lead to very different outcomes depending on the authority dealing with the case (and rules on jurisdiction often make it difficult to predict who that would be). To me, this is legally the big, fat, painted elephant in the EU competition enforcement room (hence the pic –taken at a Banksy show- at the top of the post)

Lastly, I also read a few speeches by high officials at DG COMP. In preparation for a paper which will touch a bit on commitment decisions and on the technology sector, I read a speech by Vice President Almunia on commitment and settlement decisions in which –this grabbed my attention- he referred to the e-books case explaining that the Commission “accepted commitments in a nascent and extremely dynamic market which called for quick and decisive action”. Why is that so, you may ask. The response is contained in para. 90 of the Staff document on the 10 years of Regulation 1 referred to above: at the beginning of a special section on IT, Internet & Consumer Electronics, the Commission states that “these are industries characterized with strong network efforts [it seems quite likely that they meant to say effects, not efforts] which enable the lock-in of customers and further strengthening of dominant positions. Vigilance on the part of competition authorities is thus warranted”. So, we’re told that nascent and extremely dynamic markets call for quick and decisive action because of the risks generated by network effects. The thing is that I sort of recall having read something different somewhere

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Written by Alfonso Lamadrid

30 July 2014 at 2:59 pm

What makes a great lawyer?

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In the course of a conversation last weekend someone asked me about who I thought were the best competition lawyers in Brussels. Not that I’m going to share my thoughts on that here because it wouldn’t be elegant to use the blog for self-publicity ;)  it would be unfair as, aside from the subjectivity inherent to the reply, I’ve only been exposed to the work of a limited number of people. Our conversation then shifted to what is it that makes a great lawyer, and that’s something that I thought could make an interesting subject for a blog post (it’d been a while since we didn’t post random ruminations).

 

To be sure, there’s no perfect lawyer for all situations, areas of practice and clients, but in any event the ideal recipe should probably incorporate a balanced doses of multiple ingredients, most of which aren’t taught, or at least not at law schools, and often not even at most law firms:

 

Typical (bad) legal education mainly centers on developing and evaluating brain power. In my own country as well as in other continental systems this too often means plain memory. In anglosaxon systems (and to some extent in the German system too, or so I’m told) logic, analysis and writing receive more attention. And once you’re out of university some people will measure how of a good lawyer you are internally in terms of billable hours (we’ve already dealt with that at length before), and externally in terms of which firm employs you and your hourly rate (in my experience very imperfect proxies too).

 

But, in reality, there are a wide array of intangible abilities or skills that are extremely hard to assess and even to perceive, but that, fortunately, can be developed and that are, in my view, what make the difference. I refer to things like empathy, integrity, creativeness, common sense, communication and people skills, diligence and responsibility, perfectionism, the ability to question everything starting with oneself, availability, hunger/ambition (to learn and to improve), commitment (often confused with the belief that success deserves absurd sacrifices), marketing and selling, loyalty, reliability, curiosity, passion, experience, good judgment,  ability to prioritize (which has always made me distrust advice from lawyers who seem not to get priorities in their own life straight; or maybe I’m the erred one??), attention to detail, the ability not to lose the forest for the trees, having a practical business-oriented mind, being motivational and fair to colleagues, calmness, prudency, confidence (in your ability to improve, not the false security of thinking you already master everything), and I’m sure I’m forgetting many others.

 

Of course, there are many people that make partner at BigLaw firms without many of these, in which case some will consider that they are “successful”, “rich” and “hence” great lawyers. I would disagree because, lawyering being a service, excellent lawyering should be measured by its impact on others, not on the lawyer.

 

As I said earlier, to me, the ideal probably lies in a right combination of the skills outlined above, or perhaps in their relentless pursuit. But if I had to choose the single most important ability to have in a lawyer, I’d say the ability to understand people.

 

By people I mean clients, colleagues, decision-makers (judges, authorities, etc), opponents as well as the processes and interactions within and among them. And by understanding I mean trying to work inside their mind to know or guess -sometimes even to help them know or guess- what they want, what moves them and how they are likely to move and be moved. Knowing the law will provide you with a basic knowledge of the common framework you all move in, but then you need a lot of listening and a bit of intuition.

 

The above is only my Saturday morning take at a question without an answer, and, frankly, it’s highly unlikley that an ultra-specialized 30 year old lawyer who chose EU competition law for a career will get it right… So, it’s your turn: what is it that makes a great lawyer?

P.S. Pictured above is Atticus Finch, the legal hero from To Kill a Mockingbird, who recurrently tops up every list of fictional lawyers. His domination is so uncontestable that the ABA had to come up with this list of  The 25 Greatest Fictional Lawyers (Who Are Not Atticus Finch)

Written by Alfonso Lamadrid

3 March 2014 at 1:00 pm

Nico’s temporary good bye

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As Nicolas announced on Sunday, he has just joined DG Comp and won’t be posting for 6 months. I’ve only a couple of things to say:

- To the European Commission (which offered him a job and will now keep his mouth shut and his pen down): very cunning…

- To Nicolas: you’ll be missed and, despite some possible changes, this blog will stick to its original purpose: providing the competition law community with lame jokes and dodgy legal analysis

Written by Alfonso Lamadrid

19 February 2014 at 9:17 pm

Posted in Hotch Potch

On information requests and their limits

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The latest entry in 21st Century Competition (Kevin Coates’ very good blog; btw, pictured above is a capture of his work keyboard) explains that the Commission has improved its habits regarding information requests and that there may still be some margin for further improvement.

Kevin’s views are, as always, sensible and well explained [he also has good taste for recommending other people's writings; see here in relation to the ongoing Android investigation]. They also bring a thought to mind: is self-restraint the only limitation -other than the general principle of proportionality- that the Commission faces in relation to its powers to gather information?

Together with my colleagues Luis Ortiz and Napoleón Ruiz (no kiddin’) I am arguing in a case that is currently pending before the General Court (T-296/11) that this shouldn’t be the case [btw, I'm not disclosing anything not public given that an interim measures order was already published].

Article 18 of Regulation 1/2003 provides that the Commission may require undertakings “to provide all necessary information“. In our view, however, this provision should not be interpreted as granting the Commission absolute discretion.

If our interpretation is correct and the Commission does not enjoy carte blanche in this regard, then the criterion of necessity in Article 18 should be interpreted in an objective manner; otherwise it would be rendered meaningless, with the ensuing risk of fishing investigations. We posit that the objective element of reference could only be given by the indications of the existence of an infringement that are already in the Commission’s power, and not just by reference to the subject-matter and purpose of the investigation. The recent and most interesting Prysmian and Nexans Judgments (in relation to inspections) would seem to lend support to this idea.

This interesting question, however, won’t remain open for long. The General Court is set to deliver its Judgments on a few parallel cases on 14 March (with the exception of ours, which had a very interesting post-hearing procedural peculiarity on which I can’t yet comment). We’ll provide you with our views on these Judgments as soon as they’re out.

Written by Alfonso Lamadrid

6 February 2014 at 6:48 pm

ADS

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In the course of the past few days and weeks some friends have asked us to advertise a few upcoming Competition-related happenings. We’ve taken our time, but here’s a compilation of stuff worth knowing about:

The 3rd edition of Concurrence’s Antitrust Writing Awards is now ongoing.  You can vote for your favorite piece before the 1st of March.

Harvard’s European Law Association (HELA) has scheduled its first Antitrust conference, to be held on 24 March. It will deal with the informal application of  competition law in the U.S. and the EU. Click here to check out the call for papers and to find out more info: Hela_Call_Abstracts_updated (and apologies to Zena Prodromou for not having done this before!)

On 30 January the ABA’s Section of Antitrust Law will be holding a networking reception + a panel (Inquiries into Competition and Alleged Misconduct in UK Financial Services) in London. Click here for more info.

The annual junior competition lawyer’s conference will take place on 31 January. This is an initiative that we’ve always supported and that would be nice to see replicated in places other than the UK. Click here for more info.

And also on 31 January we will be hosting the first seminar within the competition law course that Luis Ortiz Blanco and I co-direct in Madrid. It will be devoted to Recent developments regarding the application of Article 101 TFEU (including damage claims, anti-competitive agreements in the pharma industry and the fight against cartels in a context of economic crisis), and will feature Fernando Castillo de la Torre (EC’s Legal Service), Eric Gippini Fournier (EC’s Legal Service), (Carlos III University, EAGCP and CEPR), Mario Mariniello (Bruegel), Helmut Brokelmann (MLAB), Maria Luisa Tierno (DG Comp), Natalia Fabra (Universidad Carlos III, EAGCP), Flor Castilla (EC’s Legal Service), Borja Martínez (Uría Menéndez), Antonio Martínez (Allen&Overy), Jesús Alfaro (Linklaters) and Gerald Miersch (DG Comp). I’ll post the final program here as soon as it’s ready.

Very importantly, a reminder is in order: on February 7-8 AIJA and the College of Europe will be holding the not-to-be-missed conference Antitrust 2.0 Competition Law and Technology.

P.S. We’ve also been asked to mention that the Swedish Competition Authority is taking steps to publish decisions in English. Our source suggests to present this as one of the major 10 developments on the year, which I’m a bit hesitant to do ;) However, the Swede’s move is commendable, particularly when compared to what other national competition authorities do (the new Spanish authority doesn’t even have an English version for its webpage…)

Written by Alfonso Lamadrid

8 January 2014 at 5:49 pm

Cartel fines (an illustrative graph)

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These are the stats available in DG Comp’s webpage for cartel fines imposed in the period 2009-2013.

Do you see anything remarkable?

CartelFines

After years of lawyers whining about sky rocketing fines, will we now see a reverse trend of lawyers whining about too few cartel decisions and too small fines??  We are funny whining beings…

In spite of temporary appearances, though, one should not expect these figures to remain as they are. The upcoming LIBOR decision will certainly inject some significant (record breaking?) “capital” into this years’s numbers.  On top of that, there appear to be a number of cartel decisions stuck somewhere in the pipeline (interestingly, only one cartel decision has so far been adopted in 2013).

P.S. For the one true masterpiece on cartel fines -Fine Arts in Brussels-  click here (the fact that I co-wrote it doesn’t of course compromise my objectivity…).

 

Written by Alfonso Lamadrid

20 November 2013 at 12:37 pm

Random thoughts

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In the past few days I haven’t been very diligent at keeping up with posting. My bad conscience has led me to write the hastily written random thoughts below. I might come back to develop some of them in posts to come:

1)      On joint v individual assessment of (incriminatory v exculpatory) evidence in cartel cases. For some time now I have been (intermittently) attempting to finish a lengthy piece about evidence in cartel cases (surprisingly enough, there are only a handful of publications worth reading on this subject). One of the interesting things I’m observing is that EU Courts and the Commission [please note that I’m being critical with them; as some of you have reproached me, that doesn’t happen so often] is that whereas the principle of “joint assessment of evidence” is consolidated and very much followed when it comes to assessing the evidentiary value of incriminatory items, the same cannot be said about exculpatory ones.

In most cases, a bunch of elements are put together and assessed jointly in order to declare that an undertaking has committed an infringement. I’ve nothing to object to this logical approach (even more so in cartel cases otherwise these could hardly be brought). My concern on this particular point is limited to the fact that [in another illustration of the tendency of many legal principles to expand themselves until a point of absurdity that eventually must lead to their nuancing] the principle of joint assessment of evidence is often resorted to as an easy escape to avoid discussing individual evidential items that the parties consider worth discussing. In my view, the Commission and the Courts should always first engage in the individual assessment of each evidentiary item, and only then (once the value or lack thereof of every standalone item is established) move on to the joint assessment of all available evidence.

Interestingly, the contrary tendency can at times be observed regarding the assessment of exculpatory evidence. I’ve come across a few Judgments that address exculpatory items one by one concluding that  “x is not in itself sufficient to rebut whatever”, that “y is not sufficient to prove whatever” or that “z cannot on its own lead to whatever conclusion”. The “joint assessment” of x, y and z as exculpatory items sometimes just doesn’t happen. For some examples, take a look at recent cases in which parties tried to rebut the AEG (parent liability) presumption (which, btw, turned 30 a few days ago). I hope to develop –and substantiate- my thoughts on this soon.

2)      A suggestion to improve the Court’s rules of procedure. Nicolas has lately pushed for reform of EU Courts’ rules of procedure regarding conflicts of interest. We have not agreed much on that issue, but I too have a suggestion to improve the rules of procedure. Unless I’m wrong, the current rules do not envisage any sanctions nor any other sort of legal consequences for parties that provide the Courts with false information to (let’s leave misleading aside, for the concept is arguably too wide, for lawyers at least). Most legal systems do envisage such rules. Imagine the Court were to ask a question (written or oral) to a party, and that the information given in response were not only inaccurate, but untrue; should that not have any consequences?

3)      A solicited response to Nico’s views about the effect on trade between MS criterion. In a recent post Nico referred to the effect on trade criterion, complaining that in the eBooks case the Commission had not undertaken any serious assessment, and had swiftly concluded that the conduct at issue did affect trade between Member States. He wisely noted that I’d probably have a divergent view, and I do (he knows me well…). If you ask me, in that case the effect on inter-State trade was crystal clear, as the Commission’s reasoning in paras. 91 and 92 (noting that the conduct at issue was implemented in the whole of the EEA and that agency agreements covered UK, France and Germany) sufficiently shows. Nico says that “[w]ith this kind of reasoning, everything may affect trade between Member States (though I understand Alfonso has a dissonant view on this”. Since I’m asked, my view is that with that reasoning, practices that are implemented throughout the EEA and that manifest themselves with a certain intensity in 3 Member States will be deemed to affect trade between Member States, which, to me, could not be more logical. In fact, as the Decision shows, no party ever challenged this specific point.

4)      A great read. Finally, I confess my (very) geekish action of the month: I’m currently reading R.Odonoghue and J. Padilla’s book on The Law and Economics of Article 102 from beginning to end, as if it were a novel (in my defense: I hadn’t done that in a very long time). The book is a monument; it’s smart, balanced, exhaustive, very well thought and written and deserves (although doesn’t need) all possible publicity. Hats off to the authors. In fact, as soon as I’m done publishing this post I’ll send both authors an invite to participate in our currently lethargic Friday slot section.

Written by Alfonso Lamadrid

6 November 2013 at 7:20 pm

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