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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“.

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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

Upcoming Conferences on the Intel Judgment and on Commitment decisions

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CONFERENCE

Monsieur le Prof Petit is a quick guy in many respects. The most recent illustration of this characteristic of his is that, within a few days of the unofficial announcent that the Intel Judgment will be out on 12 June, he’s managed to arrange a seminar about it. It will take place on 16 June, and the program is available here: Conference Intel v Commission – Programme and Registration Among the speakers are two economist who were working at the Commission when the decicion was adopted (Damien Neven and Frank Maier Rigaud), as well as Robert O’Donoghue, Jean François Bellis and Damien Geradin.

A few days later, on the 5th of June, the Brussels School of Competition (“BSC”) and The Liège Competition & Innovation Institute (“LCII”) will be holding a half-day conference on “Commitments in EU Competition Policy” in Brussels. More info is available here.

Finally, Nicolas’ assistant at University has also asked me to advertise one more conference,this one about The repair of competition harms in France and in Europe: State of art and future changes. It’ll be held on Tuesday May 13th in Paris.

 

 

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.

 

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

Ads

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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

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