Chillin'Competition

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Conflicts of Interest in EU Competition Law

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It’s been two months since Nicolas temporarily left this blog for a half a year stint at DG Comp’s Private Enforcement Unit.

In the course of this short period he’s managed to single handedly unblock negotiations on the Commission’s proposal for a Directive on Antitrust Damages, and he’s adapted very well to the fonctionnaire lifestyle (meaning that he’s now taking some days of holidays) ;)  (jokes aside, congrats to Eddy de Smijter and to the rest of the people involved in the negotiations about the Directive).

As he anticipated in his farewell post, Nico is maintaining all academic activities. Within that context, he’ll soon be participating at a conference on one of is favorite topics organized by his University. So, on 24 April the Liège Competition and Innovation Institute will be hosting a conferece in Brussels on Conflicts of Interest, Ethical Rules and Impartiality in EU Competition Policy .

Although Nicolas knows that I don’t share the same passion for the topic (or maybe precisely because he does?), he’s asked me to advertise the conference here. So voilà. It will feature representatives from the General Court, the European Commission, the OECD, the Belgian Competition Authority, as well as lawyers in private practice, The New York Times’ Brussels correspondent and ULG Professors and Researches, including Nico himself. Even Emilly O’Reilly (the current Ombudsman, whom you may remember from this) is on the tentative list of speakers.

Why do I say I don’t share the passion for the issue? Because whereas some improvements could possibly be made in the rules -mainly regarding their transparency-, I think we should be careful in not overshooting the mark. Otherwise we’d risk creating the impression that there’s a major endemic problem where I’m not at all sure there’s one (I, for one, I’m much more concerned about the Commission’s recruitment processes and about internal rules that oblige experienced people to rotate jobs too often or too soon). Anyone working in Brussels for some time will have worked with, against and before friends or professional acquaintances (sometimes the line is drawn too thinly). In my experience who you have on the other side doesn’t matter (at least for good: I do know of situations where lawyers’ friends deciding on cases have been unnecessarily harsh on them just to make a point and dispel any concerns, and that’s as unfair as the contrary) and there are enough checks and balances to avoid problems. The only positive consequence of working before people who know you is that they will perhaps trust you, provided that you have never proved not worthy of that trust (and competition law practice is also a game of repeated interactions), but I don’t see what’d be wrong about that.

As I told Nico back when he wrote his controversial piece on this subject, what’s different in our field is that our “relevant market” is very narrow; we’re not so many lawyers/economists repeatingly interacting among us and with the same academics, officials and judges. The only solution to the perceived problem, as framed, would be to have virginal public officials and lawyers who have not moved around jobs, who know no one, who haven’t studied at the same places, who haven’t worked with different people and who haven’t established a personal rapport with those in their field. In my view, at least, in that case the cure (assuming it were feasible, quod non) would be worse than the disease.

That said, considering the speaker line-up I’ve no doubt the conference will be most interesting.

 

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Competition law in two-sided markets

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This is a last call: exactly in one week (on thursday, 3 April) the Academy of European Law (ERA) will be holding an afternoon workshop on Two sided markets in abuse of dominance and merger cases.

I don’t think it’s an overstatement to say that this is the most interesting possible event ever to have been organized on what definately is the single most important and fascinating subject in contemporary antitrust (and beyond).

The two speakers (Thomas Graf and Lars Wiethaus) are great; the Chair a bit less so.

If you haven’t done so yet, you can still register here.

As a teaser, I leave you with the only slide I’ve been able to come up with so far  ;)

 

Written by Alfonso Lamadrid

27 March 2014 at 6:37 pm

Today 10 years ago: behind the scenes of the Commission’s (first) Microsoft decision

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Ten years ago today, on 24 March 2004, the European Commission adopted its landmark Microsoft decision.

Whether one likes it or not, the 2004 Microsoft decision is arguably the most prominent decision ever adopted by the Commission; it contributed to place DG Comp at the forefront of worldwide competition enforcement, particularly in IT markets.It also started a series of Microsoft’s contributions to the EU Budget (see here for our suggestions on what could be done with the 2 billion Microsoft has paid in fines over recent year ;) ). In many ways, it marked a turning point in EU competition enforcement.

Some of you may not remember that in the days prior to the decision it all seemed like the Commission and Microsoft would strike a deal. Microsoft’s Ballmer (whose birthday is also today) flew to Brussels probably with the expectation of an amicable hand shake with the then Commissioner Mario Monti. But negotiations derailed…

The whole, very detailed and must-read account of what happened in those days was published in the Financial Times in 2006, in the days prior to the Court hearings in Luxembourg. Tobias Buck wrote a great series of two articles in which he describes the sequence of events in quite some detail and in a novelesque manner.

As any good narration, it contains an interesting character depiction of the main actors of the story, including Mario Monti (“an ascetic man who spoke with professorial precision and never departed from his written brief“), Steve Ballmer (“a ruddy-complexioned, beefy-handed extrovert known for having the loudest voice in any room he occupied and possessor of an enthusiasm and self-belief that tended to drive all before it“), Brad Smith (Msft’s General Counsel, “a cheerful 48-year-old who graduated summa cum laude from  Princeton [who was] described by a Commission official as  the archetypal “problem solver”), Cecilio Madero (now Deputy Director General at Comp, but back then the Head of Unit leading the charge in the case, whose “energy inspired the team of young officials working under him“), Philip Lowe (“a wiry Briton with a penchant for German poetry” who was “keen to be involved” and who took a more “flexible and creative approach“; he just retired a few months ago) and the “three officials – none of them much older than 30 when they started on the case, that formed the core of the investigating team“: Jean Huby (“a young Frenchman  whose quick mind and aggressive style in turn impressed and infuriated the  Microsoft team“, who “had the habit of organising 2am  conference calls” and who went on to be CEO at Areva Wind, now at MAKE), Oliver Sitar (“who left the team after Mr Monti’s decision for a spell at a New York film school” and who later retuned to the Commission and now deals with other issues) and Nick Banasevic (“a soft-spoken British economist who joined from the Commission’s  foreign affairs directorate and is the only one still working on the case”; the “still” in that phrase was written 8 years ago, but Nick is currently the Head of Unit in charge of internet and consumer electronics, and, in many ways, is “still” working on the case and on its ramifications.

For the complete FT behind the scenes story, click here (Part I: How Microsoft and Brussels Squared Up) and here (Part II: When Microsoft and Brussels went separate ways).

For a list of other anniversaries, check AP’s Today in History

Written by Alfonso Lamadrid

24 March 2014 at 1:18 pm

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On 20 March the Global Competition Law Center will be holding its 68th lunch talk. The topic is the 2014 Communication on the notion of State Aid, and the speakers Vittorio di Bucci (Director at the EC’s Legal Service), Nicola Pesaresi (Head of Unit, DG Comp) and my colleague/boss José Luis Buendía (Partner at Garrigues). You can register (this is an interesting, brief and cheap one: 30 euros) via this website.

The Institute for European Studies at the VUB in Brussels will be starting a series of lectures on the role of national competition law and national competition authorities. The inauguaral lecture will be delivered by Alexander Italianer (Director General at DG Comp) on 21 March at 12. More info is available here.

Also on 21 March there will be a seminar on the application of competition law by judges and arbitrators (in Madrid and in Spanish, though), organized within the framework of the course that Luis Ortiz and myself co-direct there.

On 3 April ERA will be hosting an afternoon workshop on Two sided markets in merger and abuse of dominance cases here in Brussels featuring Thomas Graf (Cleary Gottlieb), Lars Wiethaus (E.CA Economics) and myself. This is not to be missed. The program is available here: Two Sided Markets in Merger and Abuse of Dominance Cases (ERA)

The 21st St.Gallen International Competition Law Forum ICF (“Current issues and developments in competition law“) will be held on May 15th and 16th 2014. Even though for some odd reason we haven’t been invited to speak there (which obviously lowers the quality of any event ;) ) we acknowledge that the speaker line-up is otherwise quite impressive. Further information including a detailed programme are available on the conference website: http://www.sg-icf.ch/.

Last but not least, the book Comparative Private Enforcement and Collective Redress Across the EU, edited by Barry Rodger, is just out. Looks quite promising.

P.S. And speaking of ads, I’ve just checked Chillin’Competition’s ad-related earnings and we get approximately $4 per month (which is slightly below my hourly rate) for approximately 25,000 monthly visits. We have high aspirations, though, and, I tell you, one day we’ll be getting enough to pay for at least two monthly beers.

Written by Alfonso Lamadrid

12 March 2014 at 12:23 pm

Posted in Events, GCLC

BIICL’s merger conference + AIJA’s tech conference + a pub-related question

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The British Institute of International and Comparative Law will be holding its 11th annual conference in Brussels tomorrow. The line-up of speakers is quite impressive and the topics extremely timely; you can check them out here: 11th_BIICL_merger_conference

In case you’re too lazy to click on the above hyperlink to the program, just know that the panels will address the following subjects:

 - Screens and inferences in mergers: has DG Comp opened the Pandora’s box of price pressure tests?

- Remedies and Efficiencies – What Really Compensates for the Loss of Competition?

- Hot topics: Minority Stakes, Procedural Simplification, the Rise of MOFCOM.

Apologies to Philip Marsden, to whom I said I’d advertise this a bit more in advance…

Also, be aware that the early bird rate offer for AIJA’s must-attend Bruges conference on Antitrust and Technology is expiring today. For more info, click here: http://antitrustlair.files.wordpress.com/2013/12/antitrust-2-0-competition-law-and-technology1.pdf

P.S. And speaking of Bruges, on Wednesday I’ll be visiting the College of Europe as part of Garrigues’ recruitment process. I was told yesterday that De Garre (the real reason why I wanted to go to Bruges) is closed these days; if any student can give any inside-information, that’d be much appreciated ;)

Written by Alfonso Lamadrid

20 January 2014 at 1:12 pm

Posted in Events

Case C-58/12 P Groupe Gascogne v Commission + some other stuff

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- 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.

Written by Alfonso Lamadrid

26 November 2013 at 12:15 pm

Best Conference on Antitrust Damages to Date

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GCLC Logo

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.

Location:
Residence Palace
Rue de la Loi, 155

1040, Brussels

Written by Nicolas Petit

4 November 2013 at 9:56 am

Posted in Events, Uncategorized

Forthcoming Events

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images

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.

Written by Nicolas Petit

30 May 2013 at 12:35 pm

Posted in Events

Speaking slots for sale

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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 spayeaker (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?

 

 

Written by Alfonso Lamadrid

15 April 2013 at 5:06 pm

ABA Spring meeting + New Spanish competition authority

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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 (alfonso.lamadrid@garrigues.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…

Written by Alfonso Lamadrid

4 April 2013 at 5:05 pm

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