Archive for the ‘Hotch Potch’ Category
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
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…)
These are the stats available in DG Comp’s webpage for cartel fines imposed in the period 2009-2013.
Do you see anything remarkable?
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…).
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.
The past few days have left us some interesting statements on the competition front. Here’s a personal selection. Happy to add any others any of you might have.
A) The French Industry Minister said last week that EU’s competition rules are “stupid and counter-productive“. I can understand part of the point, but the view that ”Europe organized the balkanization of its companies by chasing down state aid” is peculiar, given that the State aid control regime seeks precisely to eliminate barriers to inter-State trade. As put by José Luis Buendía in another often quoted statement, “State aid ‘DNA’ shares more chromosomes with internal market rules than with antitrust rules“.
disrespect towards misunderstanding of competition law seems to be a non-partisan feature of French politics. Many of you might remember Sarkozy’s comments about endive producers not being Apple or Microsoft (see here) (the statement was not without consequences: it led our friend Mark English to stop wrapping his iPhone in ham).
B) Slow, ignorant’ lawyers charge by the hour to inflate bills, says President of British Supreme Court. A statement that adds up to a controversy we’ve often echoed regarding billable hours (see our previous post “Is associate lawyer the unhappiest job?“)
C) Have law blogs surpassed law reviews? That’s not really a statement, but rather an interesting (and interested) read.
D) The tone of the comments regarding Google’s proposed commitments has increased and reached new heights. A few days ago, an “anonymous” (no wonder!) lawyer representing one of the complainants said: “All we have to go on at the moment is what Almunia has said and it is absolutely not encouraging. Putting lipstick on a pig does not mean it is not a pig (…). “It’s starting to look like he just wants to get a deal before his term as Commissioner is up next year.”
The most important (antitrust-related) news last week was the European Commission’s announcement that it will market test a commitment proposal submitted by Samsung regarding the enforcement of its SEPs (Standard Essential Patents) related to mobile communications.
As you know, the Commission considered in its December 2012 Statement of Objections that the seeking of court injunctions by Samsung in relation to SEPs which it had committed to license on FRAND terms, or that third parties (i.e. Apple) were apparently willing to agree to license on FRAND terms, could amount to an abuse of dominance, because “access to patents which are standard-essential is a precondition for any company to sell interoperable products in the market” (press release dixit; we’ll come back to this phrase at the very end of the post). The theory goes that the challenged enforcement of SEPs could allow Samsung to obtain licensing terms that the licensee wouldn’t have agreed to absent the threat, and that this “undue distortion of licensing negotiations” would harm consumers in a number of different ways.
[Query 1: is this an exclusionary abuse? an exploitative one? both?; Query 2: Would an alleged abuse of this sort lend itself to the application of the Guidance paper?; Query 3: If the answer to query 2 is "no", then what are the criteria to undertake a legality assessment of a situation like this? Query 4: How does one assess the likelihood of anticompetitive effects in a situation like this?; Query 5: can you distinguish a willing licensee from a non-willing one without taking a view on what's FRAND? (I guess the proposed solution arguably gives an answer to this 5th question; if someone's willing to accept the proposed framework... ); Query 6: Was Apple -the de facto complainant- a willing licensee in this case?].
Samsung (which just before receiving the SO had unilaterally withdrawn all its European SEP-based injunction claims) has now offered to refrain from seeking injunctions for past, present and future mobile (smatphone and tablet) SEPs for a period of five years againts any company adhering to a given licensing framework. As explained by the Commission itself (and here I’m “scraping” its Press release) “the licensing framework consists of: (i) a negotiation period of up to 12 months and (ii) if no agreement is reached, a third party determination of FRAND terms by either a court or an arbitrator, as agreed by the parties. If the parties cannot agree on either submitting to court or arbitration, the parties will have to submit to arbitration“.
Some well known commentators in the patent blogosphere swiftly commented on the proposal in a critical manner (see “EU Commission market-tests totally insufficient FRAND commitments offered by Samsung“). My preliminary take is that, even if some issues may (inevitably?) be left open, this proposal would shed some welcome light on a much contentious subject.
We’d be happy to host a discussion in Chillin’Competition, and welcome the views that any of you might have with regard to both the case and the commitments proposal.
Let me get the ball rolling:
When did the new Belgian competition Act enter into force?
If you run a Google search most results (notably a few dozen law firm’s newsletters saying exactly the same things) will tell you that it did on September 1st, 2013.
You can’t blame them, though. On August 30th The Belgian official journal (Moniteur Belge) published a Royal decree providing that the new Act would enter into force on the first working day following the said publication (that is, on September 1st).
However, it seems that the Royal decree wasn’t really Royal, because no one realized that the King had not yet signed it (apparently he was on holidays
, elephant hunting, or doing whatever it is that Belgian Kings do), and that therefore it was devoid of legal effects.
That’s why on September 4th a new Royal decree was published on the official journal stating that the publication of the previous Royal decree (actually there were two of them) shall be considered null and void (“il y a lieu de considérer la publication des deux arrêtés royaux susmentionnés comme nulle et non avenue. Ces arrêtés ont été retirés avant leur signature”).
And then, on September 6th, yet another Royal decree was published providing that the Act would enter into force on that very same day.
So, between September 1st and September 4th people thought that the Act had entered into force, when in reality that wasn’t the case.
We hear there were hearings held in those days in which lawyers were pleading on the basis of the new Act, but were told that they were misinformed.