Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for the ‘Events’ Category

More on Android

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On Wednesday I very much enjoyed participating in an interesting panel on the Android investigation with Kristina Nordlander, Trevor Soames and Neil Dryden. We hold different views about it (I’ve motivated my skepticism here before) but it’s always a pleasure to debate with smart lawyers.

Our presentations are available here:

Lamadrid_Android (thanks to Miguel Angel Bolsa for the help!)

K. Nordlander – Android and Google Play

Trevor Soames_Android (this one contains a few references to this blog)

In my next conference appearance (at the Swedish Competition Authority’s Pros and Cons conference on Two-sided markets on 28 November; see here for the program and registration info) I’ll be accompanied by another reputed and esteemed jurist who also happened to found this blog.

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Written by Alfonso Lamadrid

17 October 2014 at 11:10 am

ERA’s workshop- Exclusionary Pricing under Art. 102 TFEU: Impact of Recent Case Law

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ERA (the Academy of European Law), with which we’ve collaborated a few times in the past, will be holding a competition workshop titled “Exclusionary Pricing under Art. 102 TFEU: Impact of Recent Case Law”.

It will feature our friend Damien Gerard (who, by the way, has succeeded Nicolas as Director of the Global Competition Law Centre), our first Friday Slotee Ian Forrester (he’s actually the one who proposed the Friday Slot name), and Manuel Kellerbauer, from the Commission’s Legal Service.

Judging by the absurdly high number of click-troughs to Wouter Wils’ now famous piece on Intel and the effects based approach that we’ve seen on this blog in the past couple of days, we guess that this event might be of interest to many of you…

For more info, click here.

 

P.S. The fact that this posts gets me a free pass for one of our most recent hires (Sam Villiers, you’re welcome)  is merely incidental ;)

Written by Alfonso Lamadrid

24 September 2014 at 5:51 pm

Upcoming events

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Platforms like this blog are supposed to be 2-sided markets where the service is provided to users for free and paid-for by revenues obtained in the other side of the market, notably via advertising. We may be among the few economic illiterates that haven’t devised a way to monetize at all our advertising and, instead, have traditionally advertised anything that friends do (plus the books and journals of which Nicolas gets a copy; e.g. see the post below this one). In that spirit:

On 26 September the Competition Law Scholars Forum (CLASF) will be holding its 23rd workshop in Madrid under the title  Competition Law in Leisure Markets. The program, which includes discussions on Google, ebooks, football and even bullfighting, is available here.

By the way, one of the organizers of this event –Prof. Barry Rodger- has just released a competition law textbook (co-written with Angus MacCulloch) titled “Competition Law and Policy in the EU and UK”. The book will be supported by the Who’s Competing blog. Here’s the flyer: Competition Law & Policy Flyer

On 30 September AntitrustItalia will be hosting a discussion on the Intel Judgment in Brussels featuring Manuel Kellerbauer and Luigi Malferrari, both from the Commission’s Legal Service. Click here for more info.

The university where I studied (which thanks to Prof. Jerónimo Maillo has always paid a great and uncommon attention to competition issues) will be holding an International Conference, also in Madrid, under the title “The Fight against Hard Core Cartels: Trends, Challenges and Best International Practices” on 27-28 November. The call for papers is available here: Call for PapersThe Fight Against Hard Core Cartels

Unfortunately I won’t be able to attend it because on 28 November I’ll be enjoying the warmness of Stockholm at the Swedish Competition Authority’s Pros and Cons Conference, which this time will be centered on Two-sided markets. The title of my presentation will be “The double duality of two-sided markets (on competition law and complexity)”. Now I only have to figure out what the heck to say.

Written by Alfonso Lamadrid

11 September 2014 at 12:14 pm

More on the antitrust-privacy interface

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In some previous posts we’ve commented on the interface between the competition rules and data protection/privacy regulation, which is one of the trendiest topics in international antitrust these days.

As you may recall, the European Data Protection Supervisor recently held a high level workshop (high level but for my intervention on it, that is) on Privacy, Competition, Consumers and Big Data. On Monday, the EDPS made available on its website a report summarizing what was discussed in the workshop (conducted under Chatham House rules). The EDPS’ summary is available here:  EDPS Report_Privacy, competition, consumers and big data.

A summary of my intervention at the workshop was published in two recent posts (here and here).

For more, you can re-read Orla Lynskey’s A Brave New World: The Potential Intersection of Competition Law and Data Protection Regulation as well as the interesting comment by Angela Daly on my latest post on the issue.

The German Monopolkommission has also addedd its voice to the debate by issuing a recent report (“A competitive order for the financial markets“) which contains a section on data-related questions regarding the internet economy. The Press Release (in English here) expressess some concerns but notes that, according to the report, “an extension of the competition policy toolkit does not (yet) seem advisable on the basis of current knowledge and understanding“.

Written by Alfonso Lamadrid

16 July 2014 at 9:33 am

Materials on commitment decisions + upcoming conferences (on Intel, Samsung and Motorola)

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Voluntary2

I realized yesterday that the slides used by all speakers at the Brussels School of Competition’s and Liège Competition and Innovation Institute’s very interesting conference on Commitment Decisions in EU Competition Policy are available here  (the image above corresponds to one of mines;  as an animated GIF it looked better in slidehow).

As for my presentation, I don’t think I said anything that was particularly original. I essentially did a 20 minutes quick overview and categorization of  the commitment decisions adopted so far on the bases of  (a) the (real) underlying reasons to resort to them, which may not always have to do with procedural economy considerations; (b) the sectors they affect (you can observe clear clusters that provide useful insights regarding enforcement priorities complementing regulatory initiatives -or lack thereof-); (c) the theories of harm at issue in each case and (d) the remedies made binding. This exercise made (even more) evident that both the theories of harm and the remedies that we see in these cases are nowhere to be found in Art. 7 infringement decisions. My purpose was merely to provide an objective account of these cases, so I left the discussion on the pros and cons of this approach to my fellow panelists.

Btw, the Liège Competition and Innovation Institute will also be holding other two interesting conferences in the coming days:

Intel v Commission: More eco or more ordo fiendly? next Monday 16 of June

and

The Commission’s Decisions in the Samsung and Motorola Cases – IP v. Competition 2.0?on 11 July

Have a nice w-e!

 

 

Written by Alfonso Lamadrid

13 June 2014 at 11:12 am

On Privacy, Big Data and Competition Law (Post 1/2)

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As I self-advertised in my previous post, I participated yesterday at the European Data Protection Supervisor’s impressive workshop on Privacy, Consumers, Competition and Big Data, where, by the way, this blog received a few mentions.

My impression is that it provided a useful opportunity for various actors to reflect together on the nature, potential and limitations of each discipline in the wake of the EDPS preliminary opinion on these issues.

The workshop touched on competition issues several times. On the EU side, Kris Dekeyser gave the Commission’s view, and on the private side I was honored (and, frankly, a bit surprised) to be the sole EU competition lawyer speaking.

Julie Brill (FTC Commissioner; her speech is available here) and Pamela Jones Harbour (former FTC Commissioner now in private practice) also shared their views on the US approach to these issues.

I was asked to explain to a non-expert audience (by non-experts I mean those who retain the ability to realize sometimes that the king may sometimes be naked…) the notion of market power, why it is important for the application of our rules, how it is assessed in practice, and what are the particular challenges posed by digital markets and big data in this regard.

I’ll spare you the content on my intervention on the most basic issues; suffice it to say that I pointed out that the traditional means to define markets and market power are far from perfect in many ways, but that they’re not supposed to be used mechanically and in the abstract, that the Commission may depart from standard assessment tools to capture the dynamics of competition in any given sector, and that it enjoys wide discretion to act flexibly in this regard.

Moving on to the more interesting stuff. Following a conventional explanation of the main peculiar features of technology/digital markets and of their mixed competition law implications I gave my (non data protection expert) views on the big relevant issues addressed in the workshop, namely (A) What are the implications of data and big data for market definition and market power assessments and (B) Should privacy data protection standards be incorporated to substantive assessment under the competition rules

Today we’ll discuss A, and tomorrow [on Friday] we’ll deal with B, so:

What are the implications of data and big data for market definition and market power assessments?

(i)                 Data is without doubt an increasing important asset/input, and it should no doubts be acknowledged as such. As some of you may remember, some time ago I commented on an article that essentially posited this idea, which I consider to be fairly uncontroversial. In this sense, I’ve no objection to the idea that, depending on the circumstances, data-related issues may give rise to competition concerns.

At the same time, however, data is an important asset or even crucial asset, but no more; and I don’t see why competition law would be required to adapt its rules to when applying them to data-heavy markets.

(ii)               I see one exception to the above. As I explained in a recent post, our current turnover thresholds are not well-suited to capture mergers in the subsidized side of two-sided markets (which may often be markets where non-traded data is important). Only jurisdictions envisaging market share thresholds (often criticized, also by me) may be competent to assess these transactions. Facebook’s very recent decision to try to have the EU review the acquisition of Whatsapp is to be read within this context. I don’t know what the solution is, but it’s worth a thought.

(iii)             Some (including Pamela Jones Harbour in her dissent to the FTC’s Google/Double Click decision) have advocated for a definition of relevant markets for “data used for x [in that case targetted advertising] purposes”. I’m not persuaded by this proposal (except perhaps when the data is subject to trade) because I’m not sure the intermediate data market is a meaningful market in the sense of competition law. If the alleged problem is that the use of data might have consequences in some markets, then my take is that it makes more sense to assess those markets directly.

(iv)             Regarding the big substantive issue, which is related to scale, aggregation, network effects playing to the benefit of allegedly dominant firms, I essentially said that:

  • far from being an obvious competitive problem this also has mixed implications, for data can also be a source of very significant efficiencies (and big data a source of big efficiencies) in many and important fronts;
  • it is true that access to data may in some circumstances be a barrier to entry and even a very important one depending on the facts (I also noted that barriers to entry are not in themselves a problem requiring intervention because competition law is about conducts and not structure);
  • many people throw out “essential facility” as a buzzword in this context to support the contention that some firms should be mandated to share data. In my view the term is used too loosely. As I explained, the identification of an essential facility is subject to an extremely high legal burden (indispensability, elimination of competition in a downstream market…) which makes it difficult to think of instances where it could be satisfied;
  • some people had formulated the idea that network effects and scale determine that users may be locked-in to a given provider and therefore have no meaningful choice as to the privacy policy applied to them. On this point I recalled, among others, that the recent Microsoft/Skype Judgment (yeah, I’m already starting to quote it) seems to close the doors to any argument based on laziness/stickiness when switching is technically and economically feasible.

(v)              I also observed that the main issue where competition law and data protection policies may converge relates to data portability. In cases where it is shown that scale is of the essence, then practices that could deny rivals a minimum viable scale could fall within the scope of the competition rule (in fact, Google’s proposed commitments -see here and here- already incorporate a section on the portability of data for AdWords campaigns). On the regulatory front, the proposed new EU regulation on data protection (currently stuck at the Council) also incorporates a right to data portability. Btw, some of the major companies cited in these discussions already have tools to facilitate portability (see here or here)

(vi)          My last comment on this point was that privacy policies can also be a parameter of competition (even if admittedly many users currently appear to confer more importance to other parameters).

Apologies for making it so schematic, but having quite some work to do I’ve chosen to basically to a transcript of my notes, plus this is already lengthy enough for a post.

On the next post I’ll state my views on whether non-economic privacy considerations should be included as part of the consumer welfare standard.

Written by Alfonso Lamadrid

3 June 2014 at 3:00 pm

Speaking engagements

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Minutes after I published the post on endives’ right to be forgotten I received a call from the European Data Protection Supervisor’s office. At first I admit I thought it was someone (my first suspect was that guy from 21stcenturycompetition because he’d read a draft of the endive thing; don’t worry, Kevin, I won’t disclose you thought it was serious) returning the joke, but it wasn’t, and I got invited to speak next Monday  the most interesting (but closed door) Workshop on privacy consumers, competition and big data (to be held at the European Parliament and arranged in the wake of the EDPS report that we –actually Orla- discussed here).

I’d solemnly committed myself to have a life and not take on any more non-work (non-billable, that is) stuff in the coming weeks/months, but it was an offer I couldn’t refuse. My topic is Market Power in the Digital Economy.

Three days later, on Wednesday 5 June I’ll be providing an overview of the commitment decisions adopted by the Commission since the enactment of Regulation 1/2003 at the Brussels School of Competition’s annual conference. This event you really should attend (click here for info: Programme_Commitments in EU Competition Policy – 5 June 2014).

[ I apologize in advance to all attendants at these two conferences: I’ve an important General Court deadline on Friday and then a bachelor party weekend, so preparing might be a challenge. Yes, this is the ol old expectation-lowering trick ! ]

Then on 8 July I’ll be lecturing on EU competition procedure and on Special and Exclusive Rights (Art. 106) at the College of Europe’s Competition Summer School for Chinese officials. Talking with Chinese officials about how competition law applies to public measures should be quite an interesting experience.  And then on the 11th same procedural class in the context of the College’s summer course on competiiton law.

And then, following my first paternity leave in September, I really plan to take on less of these commitments.

Well, on 28 November I’ll be participating at the Swedish Competition Authority’s annual and always excellent Pros and Cons conference, which on this edition will be devoted to Two Sided Markets, but I couldn’t say no to that either…

Written by Alfonso Lamadrid

28 May 2014 at 5:52 pm

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