Archive for the ‘Events’ Category
- Fresh off the Court. This morning the ECJ handed down a Judgment in which it has ruled that the Court itself is not supposed to reduce the fine imposed on a company whenever judicial review by the General Court exceeds a reasonable time. This Judgment effectively and explicitly overrules the Baustahlgewebe Judgment, in which the ECJ had followed the opposite (and in my view much more reasonable approach). Today’s Judgment is premised on the idea that an application for damages brought against the EU would in all circumstances constitute an effective remedy to compensate for any damages caused by the GC’s failure to adjudicate within a reasonable time.
For those of you with less background on general EU law, actions for damages against the EU shall be brought before the General Court. In other words, parties who believe that the duration of proceedings before the General Court was excessively lenghtly should, by means of a different application, ask the General Court itself to ascertain whether its own behavior was appropriate in the light of the circumstances specific to the case and whether the parties suffered any harm. Good luck with that…
- Save the date! On February 7th and 8th AIJA [Association Internationale de Jeunes Avocats) (a generous institution according to which lawyers below 45 qualify as young] will be holding a two-day conference in Bruges under the title “Competition Law 2.0- Competition Law and Technology“. A not-to-be-missed excuse to
spend part of the weekend in Bruges and pay a visit to the greatest beer bar ever discuss hot topics in current antitrust. Both Prof. Petit and myself will be speaking there.
- Speaking of current antitrust debates: the last number of the Journal of European Competition Law and Practice (a great journal that has rightly earned a prominent place in a saturated? market) features various very good articles, including one by our guest blogger Pablo Ibañez on State aid litigation. At another level, it also features a brief piece of mine [the hyperlink only leads to the abstract] about Google’s commitments (you already know my views). Ironically, my comment was written in relation to the first version of the commitments but features in the “current intelligence” section of the journal. Fortunately I did explicitly envisage “likely further tweaks over specific details” and all comments are applicable to the new (leaked) proposal.
Antitrust Damages in EU Law and Policy
Brussels, 7 and 8 November 2013
Join the GCLC for its 9th annual conference and get first-hand guidance on the interests at stake at a crucial moment of the decision-making process before the European Parliament and the Council.
Vice-President Almunia, academics, DG COMP and Legal Service officials, national civil servants, national and EU judges, business people and competition specialists will debate, comment on their expectations and how they hope to overcome the final hurdles.
Rue de la Loi, 155
A bunch of interesting events:
- 7 June, Athens: 7th International IMEDIPA Conference on Competition Law and Policy (I. Liannos has also sent us information on three other interesting events: one on evidence in competition proceedings (in London); a course on innovation and competition by Herb Hovenkamp (in London too); and a conference on regulatory impact assessments (in Paris))
- 10 June, Brussels: Half Day Conference on the new Belgian Competition Law+Agency jointly organised by the Brussels School of Competition;
- 14 June, Brussels: GCR IP and Antitrust conference. This event focuses on SEPs and injunctions essentially. Amongst other things, speakers have been asked to discuss the ongoing Samsung, Motorola and ZTE cases. The programme looks great, as does as the list of speakers. The downside: the conference fee. We, at chillingcompetition, do not like that. Upon request, the organisers have offered free tickets to my students. Not too bad.
PS: talking bout students, congrats’ to my former stud D. Auer who was just admitted to the LLM programme at the university of Chicago. We are very proud.
I landed in Brussels this morning at 7 am after an intense week of
cocktails antitrust events at the ABA’s antitrust spring meeting in DC. I’m knackered (I also have to recover from the sight of 2,700 antitrust lawyers under the same roof) and have lots of catching up to do, so let’s keep it simple today:
Nicolas’ Friday post criticized several pricing practices in the conference market, namely excessive pricing and lack of pricing discrimination in favor of academics and students.
This is not a new topic; some of you might remember that many posts ago I proposed an algorithm for competition conferences, positing that “the likelihood of getting to listen to new and interesting stuff is inversely proportional to the combination of three cumulative variables: the price of the event, the number of attendees, and the number and lenght of slide decks. It’s generally not a good sign if an event is pricy and crowded. The ones with a greater chance of not being interesting at all are those for which you have to pay in order to be a sp
ayeaker (yes, there are plenty of those!)”.
I discussed Nico’s post with a few sensible people over the w-e, and the discussion quickly came down to one sole issue: the ‘funny’ (not as in haha, but as in questionable) but prevalent practice of paying for speaking slots, which I had only touched upon in passing in my previous post.
I would argue that paying to speak is essentially a marketing trick based on misleading the audience. Let me prove my point: how many spaykers do you think would want to appear at a conference if the audience had transparent information about who’s paying for the slot and who’s not?
If you’ve something interesting to say, you should get paid for it (not so difficult, even Sarah Palin gets paid to speak) or at least be invited to speak for free. Note also that people who pay to speak would not normally (there are of course exceptions) give objective overviews of the topic at issue; their presentation would tend to be a more or less obvious sales pitch. I’ve nothing against lawyers advertising themselves, but, as in other contexts (some might think of search engines), it’s generally good to be able to tell what’s advertising and what’s not.
The most obvious way to address this “market failure” and push for a merit-based allocation of speaking slots would be to have lawyers stop paying (smart, uh?), but since self-regulation is unlikely to work, I would suggest, for a start, that public officials refuse to appear in conferences where people pay just to sit with them.
What’s your take?
As explained in previous posts, there is a new and innovative Spanish competition law in the pipeline. I say innovative because the main change it will bring to the current system is the unification of sectoral regulators and the competition enforcer into a single “competition and markets authority”. We have voiced out some of our views about the draft law in a previous post. I’m still hesitating over the idea of writing a well thought out post explaining what’s going on in Spanish competition law (I do very little national work these days, but still follow it closely), but it might be wise to go through a cooling off period first.. Anyway, what I meant to say -mainly to our Spanish readers- is that the new draft law was approved by Congress and sent to the Senate earlier today. It’s available here.
Also, I’ll be flying to DC on Tuesday for the ABA’s section of antitrust law spring meeting. The program is interesting, but this event is mostly about
attending free cocktails networking (which may reinforce the perception some people have of lawyers as heavy drinkers). If any of the readers of Chillin’Competition is around, you can drop me a line (email@example.com); unfortunately we don’t always get to meet those of you outside Brussels. My firm will not be hosting a reception [hosting cocktails in the State can be risky from a legal point of view ;)], so I’m collecting cocktail invitations from others. I actually have a bet with an in-house counsel friend to see who gets more, and he’s clearly way ahead. Being an in-house at one of these events must feel like being the hot girl at a night club: everybody wants to buy you drinks…
As you know, we like to use this blog to favor our own related services ;) So here’s some advertising on three upcoming seminars to be held in Madrid within the framework of the Competition Law Course that Luis Ortiz Blanco and I co-direct, now on its XVI edition. (The pic above was taken during a lecture I gave there last Wednesday on antitrust in non-regulated network industries).
28 February- 1 March: Seminar on Competition Law in the Public Sector (coordinated by José Luis Buendía -Garrigues- and Jorge Piernas -EUI-), also featuring Joaquín Fernández (DG Comp), Luca Rubini (Univ. Birmingham), Jerónimo Maillo (CEU), Carlos Urraca (Legal Service, European Commission), Deborah Heredia (Spanish Ministry of Foreign Affairs), Juan Arpio (Univ. Zaragoza), Alejandro Requejo (Compass Lexecon), Juan Pedro Marín (SEPI), Rafael Calvo (Garrigues) and Juan Espinosa (Spanish Competition Authority). Program available here: Competition law in the public sector 2013
8 March: Seminar on Recent Developments in Merger Control and Art. 102, featuring Cecilio Madero (Deputy Director General, DG Comp), Per Hellström (Head of Unit, DG Comp), Nick Banasevic (Head of Unit, DG Comp), and Milan Kristof (Référendaire, CJEU). Program available here: Recent developments in EU merger control and Art. 102 TFEU
15 March: Seminar on IP and Antitrust (coordinated by Alvaro Ramos), featuring Claudia Tapia (IP Director, Blackberry), Gil Ohana (Senior Director, Cisco Systems), Gunnar Wolf (DG Comp), Ief Daems (EU Counsel, Samsung), María Álvarez (Advisor, Spanish Competition Authority) and Victoriano Darias (Managing Director, The Napkin Idea). Program available here: Seminar IP and Antitrust 2013
Just in case you haven’t yet registered….
Lunch Talk Series – Searh Engines and Competition Law- Friday 8 February 2013
12:00 – 12:30: Sandwich lunch and socializing
12:30 – 13:45: Presentations and comments
- Mr Cédric ARGENTON, TILEC – Tilburg University
- Mr Alfonso LAMADRID, Garrigues
- Ms Anne PERROT, MAPP
13:45 – 14:00: Q&A
Please register online at: http://63rdgclclunchtalk.eventbrite.com
Registration is open until 6 February 2013.
Standard rate: 35 EUR (VAT incl.) – free seats available for sponsors.
Global Competition Law Centre
College of Europe, Bruges
As Pablo noted yesterday, my blogging urgers trump doctor’s recommendations; I figured that if Cervantes could write Don Quijote with one hand I could at least try typing a couple of posts on competition law single handedly..
We’ve undertaken a search for the most relevant competition law events to be held in February, and decided to advertise the results here. Coincidentally (or not) the events shown below are related either to friends or to us. We are aware that promoting one’s own stuff has for some become a risky business, but oh well…
On 1 February 2013 we will be holding a seminar on recent developments in relation to Article 101 within the framework of the IEB course in Madrid. Eric Gippini Fournier and Fernando Castillo de la Torre have come up with a great line-up of speakers: Viktor Bottka (Legal Service); Pablo Ibañez Colomo (LSE) and Luis Ortiz Blanco (Garrigues) will be dealing with object/effect issues; Cani Fernández (Cuatrecasas), Marisa Tierno Centella (DG Comp until recently, now CNC) and Fernando Castillo will speak about sanctions (fines, leniency and private enforcement); Lorena Boix (DG Connect), Helena Larsson Haug (DG Comp) and Ainhoa Veiga (Araoz&Rueda) will focus on online distribution and distribution of digital works. For further info you can drop me a line (firstname.lastname@example.org)
On Friday 8 February at 12.00 h. there will be a Global Competition Law Centre lunch talk in Brussels on “
On a larger scale, on 22 February 2013 our friends at Concurrences will be holding the New Frontiers of Antitrust 2013 conference at the Assamblée nationale in Paris. This conference has earned its place among the top competition law events of the year. Even though it’s not cheap, it’s always packed, so that should tell you something about the quality of the sessions. For info and registration see here. As you will see in the program, the interface between data protection and competition law will be one of the main topics dealt with; we’ll provide you with some personal views on this
We move on with a last panel on the relationship between EU and National enforcement in relation to sanctions.
Christophe Lemaire (Paris I and Ashurst) gave a comprehensive presentation on the process of convergence in terms of sanctions and, more generally, on procedural and institutional settings in the EU. And the list is impressive, as Member States seem to informally or through the ECN be working on how to streamline their approaches to sanctions. A working group related to sanctions was apparently created a short while ago in the ECN, but the timeline for the deliverables remains uncertain.
Eddy de Smijter (DG COMP, EU Commission) talks of the interplay between public and private enforcement. Eddy made the funny remark that it is currently “sales period” at the Commission, with rebates for leniency, for settlements, etc. Some want additional presents, such as reductions for compliance programmes and for voluntary compensation. But a key concern is that this is likely to reduce the gap between the n°1 and n°2 leniency applicants, and this is no option for the Commission. Moreover, if the Commission is ever to extend such rebates, this is likely to further decrease fines for everyone, on grounds of non discrimination. Then Eddy mentions in passing the theoretical debate, that exists in the US, that compensation could be a condition for leniency. He then moves to the question of what can be adjusted in leniency programmes to promote compensation. The idea of a “civil mirror” looks attractive to would be applicants: you get immunity at the administrative stage, you get it in the context of civil litigation for damages; you get fines reductions at the administrative stage, you get similar reductions in terms of damages at a later stage. Or another option is to state in the law that leniency applicants are to be the last resort defendants in claims for damages. A third option is that if you go after the immunity recipient in civil damages, then the immunity applicant should not be jointly and severably liable for the damages with the other cartel participants.
Eric Morgan de Rivery covers the Menarini case. His presentation speaks for itself. There should be, after Menarini and KME-Chalkor, full review. But he doubts the EU Courts are willing to move beyond words on this, and he argues that if the Court state that full review is actually discharged, a close examination of the facts reveals that it is not.
A nice lunch, and we are back on track.
We start with Cédric Argenton‘s (TILEC) presentation. Cédric seeks to identify a system of penalties that achieves optimal deterrence considering that firms are akin to black boxes, in other words that the management board has little control over what managers actually do. But they can design compensation schemes that seek to incentivize managers ex ante. With this background, Argenton and Van Damme build an economic model that tries to assess how individual managers will behave, considering that they know that the management board has imperfect information over what they actually do. They explain that manager have three options: do nothing, achieve high profits by cutting costs, achieve high profits with collusion. The conclusions they reach in their paper are that individual sanctions are a very good way to increase the optimality of the current sanctioning mix. They are actually a “help” to firms that attempt to comply with the law. But individual sanctions should not come alone. They should also be accompanied by corporate sanctions. Cédric and Eric’s economic model is currently undergoing experimental testing at Tilburg university. Looking forward to read their empirical results.
The following speaker is Stefan Thomas (Tubingen University). His speech is essentially about the “single economic entity” doctrine. According to Stefan, this doctrine is in plain contradiction with the principle of personal liability, as protected by several constitutional rules and international instruments. The German supreme court actually recognized this. Moreover, this doctrine is also injurious of another fundamental principle, i.e. “nulla poena sine culpa“. Stefan also takes a shot at the inconsistency of not entitling the companies to rebutt the parental liability presumption, simply by showing that they have not known or that they have not participated to the infringement. Stefan says that the Commission should assess if the parent firm has done everything possible to avoid infringement. If this is the case, this should exculpate it from liability, or mitigate it, under the competition rules.
The third speaker is Anny Tubbs (Unilever). To her, no one is perfect and a fortiori, no company is perfect. Agencies should recognize this rather than using sabre-rattling words to talk of competition infringements. Anny then goes on to explain what she views as necessary components of an effective compliance programme. In this context, I advise the reading of the slides, where there is a nice one on the 5 Cs of a good compliance programme. She also explains the internal hurddles within companies to establish competition compliance programmes. Competition law is not the sole area of law where compliance matters. Money laudering, corruption, personal data, etc. are all areas where compliance is critical. In house lawyers from the same company, but representing distinct disciplines thus often compete to convince management to allocate compliance resources towards them. Anny also indicates that lawyers are often their worst ennemies when it comes to compliance, because when they talk to salesmen, they use words that are so complex that no one ever wants to listen to them. This makes it important for in house lawyers involved in compliance to develop clear and simple messages at the attention of businesses.
A recurring issue in the presentations was the parental liability doctrine.
Very fortunately, a Commission official who was sitting in the room accepted to make some remarks (in personal capacity).He first vindicated that compliance programmes are, at any rate, a good thing, and that there is no need for additional discounts because those programmes (i) diminish the risk of infringement in the first place; and (ii) decrease the duration of infringements with efficient self reporting mechanisms.
He also gave some thoughts on parental liability, being supportive of AG Kokott’s opinion in the Gosselin case. To him, parental liability is not a problem, because the mother company, even if it is very remote from the subsidiary, derives some profit from the cartel at any rate. In reaction to this, S. Thomas counter-argued that we had spent decades to build fundamental principles such as “nulla poena sine culpa“. Those are great progresses of the rule of law. They should not been thrown away, simply for the sake of designing an optimal sanctioning programme.
This led me to a puzzling analogy: to me the Gosselin’s Kokott doctrine is akin to sanctioning with criminal fines the heirs of criminals, simply because they have given birth to a delinquant, and that they may have profited from it through presents and other gifts. Unless those persons are actual accomplices (they have instructed or assisted to illicit activities), there should be no ground to blame them.