Chillin'Competition

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A light post for a Friday

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- The Berlaymonster has a great post on one of the most transcendental EU Court Judgments in recent years; see here (the pic above is taken from the actual Judgment). The post includes the following “transcript” of a recent conversation among General Court judges, allegedly overheard in the Court’s canteen:

J1: So, what do you have this morning?

J2: A couple of Ukrainian oligarchs’ frozen assets and the legality of bankers’ bonus caps. You?

J1: Me? I have a billion-euro cartel fine on a handful of Fortune 500 blue-chip companies and a spot of precedent-setting in immigrant-workers’ rights. What about you?

J3: OH, not much…

J2: No, go on, what you got?

J3: …….not saying

J1: Tell us.

J3: N…

J1: You know we can find out, yeah?

J3: ……….. biscuits.

J1: What?

J3: …. [*mutters*] I have to decide whether a chocolate-chip biscuit with a chocolate layer on the inside is a unique design.

J2: Well that’s… that’s…

J1: Good for you.

J2: Yeah ….. good for you.

J1&J2: [*exit left, sniggering*]

[scene]

-  A few days ago NewsCorp published an open letter to the European Commission asking it to intervene against Google.  Google has now responded to the arguments in the letter on a post published in its blog. Click here to read Dear Rupert.  It  does make for quite a good read.

- Following the nomination of Commissioner-to-be Vestager  many people have started to develop an interest in the Nordic approach to competition law. Should that be your case, you should check out the Nordic Competition Blog.  This is a new and very welcome addition to the competition la blogosphere. Good luck to Simen Klevstrand (Wikborg Rein, Norway), Grant McKelvey (Vinge, Sweden), Matti Huhtamäki (Peltonen LMR Attorneys, Finland) and Michael Klöcker (Gorrissen Federspiel, Denmark).

- The call for papers for San Pablo CEU University’s International Conference on Cartels has been extended until next Tuesday, 30 September (for more info, click here: Call for PapersThe Fight Against Hard Core Cartelsv2). My colleague Ana Balcells will present there our recent paper on evidential issues.

- The new issue of Competition Law Review is out; all its articles can be downloaded for free here.

Enjoy the weekend!

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Written by Alfonso Lamadrid

26 September 2014 at 12:17 pm

Posted in Jokes

A post from the past

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A reader of this blog sent me this morning the link to a post we wrote more than 2 years ago titled The post of a summer day , reproduced below.

A re-read of those lines shows that things have changed little in the course of that period:

Just like two summers ago, it’s unusually hot in Brussels, DG Comp’s officials have stampeded out of the city to conduct on-site beach inspections (not before sending a few requests for information), and, two years later, the Commission  is still pondering what to do with Google.

Silly posts never get old.

—————————————————————

Today is not only busy but also extremely hot in Brussels (no kidding). An ideal day for a fresh summer story.

Italian beach owners have called a lockout on 3 August to protest against the obligation imposed by the Services Directive to open up beach concessions to competition (for more, see here). Actually, it seems that the application of this Directive to beaches has been the source of some concern at the European Parliament (see here).

The reader who has sent us this information adds that the current lack of competition is evident to anyone visiting private beaches this summer. We have been provided with evidence that shows that the prices applied in Knokke (Belgium) are supra-competitive, and it seems that this is the case throughout the EU [which is why you should all spend yor holidays in Spain, where beaches are great and public ;) ].

A week ago another friend/reader from DG Comp wrote to us complaining about the every day cartels that he had identified in beaches, including the renting of hammocks, pedal boats and drinks.

All these reports have generated widespread concern at DG Comp. We are told that many officials have volunteered to conduct in-depth on-site investigations. Hords of DG Comp’s staff are leaving Brussels these days in order to conduct extenuating beach inspections which, in some cases, may last for over a month. They can be spotted at airports flying to almost every beach destination in Europe.

I had lunch at the Commission’s canteen today and was told by insiders that during August the Commission will be giving absolute priority to this sector investigation. In fact, and this is an exclusive from Chillin’Competition: we are told that Commissioner Almunia has decided to settle the investigation on Google in order to free resources for this programmed massive beach inspections. One of the officials heading an inspection team has sent us the pic that illustrates this post and that proves the Commission’s zealousness.

Written by Alfonso Lamadrid

4 August 2014 at 4:19 pm

Posted in Jokes, Uncategorized

Chillin’Competition faces a legal challenge

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Chillin’Competition has encountered its first serious legal problem after a third party requested us to remove some content.

As usual readers will remember, we took particular interest in the French endives cartel case. A number of posts were devoted to endives (the best troublesome ones are here and here). Oddly enough those posts still rank among our most read, to the extent that when you type “Chilling competition” in Google’s search box the word “endives” quickly appears next to it. This is a testimony to how bad the rest of our posts must be as well as to the bizarre taste of our audience (and I thought no one liked endives…). In our defense, the endives cartel also earned some air time at the French Presidential debate. (I don’t know what’s with this vegetable, but Belgian endives were also a major feature of the U.S. 1989 Presidential campaign -see here-).

Since then we hadn’t paid any more attention to endives, even though every time there’s an infringement concerning food some readers sent press clips to us with all sort of weird post suggestions (a message to them: we are grateful, but there’s no need to do that anymore, really).

But two recent legal developments occurring within the lapse of two days have changed the landscape, and have exposed Chillin’Competition to legal risks.

-          On 13 May the ECJ delivered its ruling in the Google Spain case, holding (I will oversimplify) that there exists a certain right to be forgotten under the Directive on the processing of personal data even in relation to information which is true and was legally published.

-          And on 15 May (hold tight) the Paris Court of Appeal annulled the decision of the Autorité de la Concurrence sanctioning the endive cartel. No kidding; see here.

Following these developments, an organisation called “Les amis des endives” (French for Endive’s Friends) has requested us to withdraw all our posts regarding the endive cartel. They allege that the informations are inadequate and no longer relevant. For the record, this association has nothing to do –that we know- with the EndiveLover Twitter account).

I initially thought it was a joke. Then I thought that the Judgment doesn’t support their claim. First because, (I may get in trouble for saying this) endives aren’t natural or legal persons (arguably endive producers are, even if tasteless and heartless). Second, because -contrary to what many people seem to think- the Judgment only refers to “results displayed following a search made on the basis of a person’s name”, and people that get to our posts don’t do searching specifically for endives. Third, because –reading particularly para 80 of the Judgment- I get the impression that its establishing a lex specialis for search engines only, and perhaps only for Google (which once again gets treated as the SGEI of the new century). Lastly, I thought the information shouldn’t be withdrawn because of “historical statistical, scientific purposes” (para 92 of the Judgment).

In order to be on the safe side, I asked a team of eminent avocats about their view: Do endives have the right to be forgotten? Should our posts on endives be consigned to oblivion?

Grace Aylward (our endive expert; she’s the one who informed us about both the decision and its annulment) says: “I thought that when I grew up and became a Lawyer I could dislike whichever vegetables I wanted. Obviously I was wrong. I just hope I don’t start receiving endive hearts in the post.

Orla Lynskey (privacy and competition expert at LSE) “the ruling does not apply to publishers. It applies to search engines (and most probably could be limited to Google). Even if they do fall within the scope of the DP rules (which is very unlikely to be the case if the piece only mentions legal persons), this does not automatically entitle them to have the original link removed. You need to pass the buck to Google to determine whether the processing is incompatible with the DP rules and the public interest test for removal is met”.

I think they’re just bitter” says Mark English (a.k.a the guy who started wrapping his iPod in ham) (mate: you should think about your own right to have this forgotten; just sayin’…).

Other lawyers consulted coincide on the view that the Judgment doesn’t give mushroom to such requests and that this one in particular is nuts; if you see it differently, please lettuce know.

 

P.S . For the avoidance of doubt: this was a joke. Sadly, other absurd/ridiculous scenarios such as UKIP and the Front National winning the EU elections in England are France are not.

 

Written by Alfonso Lamadrid

26 May 2014 at 6:09 pm

A competition law anecdote in the FT

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Last Wednesday’s Financial Times featured a competition law related anecdote that might have gone unnoticed to many of you.  It’s told in a letter to the editor written by Craig Pouncey (managing partner of Herbert Smith Freehills’ Brussels office) reproduced below:

“From Mr Craig Pouncey,

Sir, Lucy Kellaway’s article “We need new excuses for not replying to emails” (April 28) reminds me of by far the most effective excuse I have encountered during my professional life. Many years ago a colleague of mine, after a night of vigorous carousing, missed his flight to London to attend a hugely important client meeting. He took the next flight, arriving hungover and several hours late, to find himself confronted by a roomful of extremely irritated clients. “Just don’t ask”, he said with conviction. They didn’t, and indeed the irritation was immediately replaced by considerable sympathy.

Not one for the faint-hearted, and perhaps to be tried only once, but I have always felt that the approach should be part of everyone’s in extremis armoury of excuses”.

Brilliant. And I’m quite confident I know who that was  ;)

 

 

Written by Alfonso Lamadrid

5 May 2014 at 7:26 pm

Obama’s secret antitrust dealings in Brussels today

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Many EU officials and some of the fauna making a living around them as well as many -like me- working in the EU area in Brussels are (once again) experiencing security checks, traffic disruptions and blockades today due to the visit of US President Barack Obama to conmemorate the 10th anniversary of the Microsoft decision, and to lobby Vice-President Almunia with respect to the Gazprom and Google antitrust investigations  (Chillin’Competition has obtaiend a pic of the President discreetly entering the Madou tower this morning).

Chillin’Competition has also learnt that Obama’s travel arrangements haven’t gone according to plan:

First, Obama’s staff sent to Europe in advance to verify in person the recent developments on the antitrust damages front experienced some trouble as they were initiating the mission trying to consume a typical and typically cartelized product (beer).

Second, President Obama is reported not to have landed at Zaventem airport, as planned, but at the secret runway at Charleroi airport discovered by DG Comp (if you didn’t know about this one, click on the link; it’s too good to be true). Apparently, the managers at Zaventem told AirForceOne that it couldn’t land because the flight had not been scheduled with enough antitipation (“on sait pas faire ça, ici c’est la Belgique, monsieur“) were the exact controllers words.

Third, the President chose to spend the night at The Hotel (the usual venue for GCLC conferences) with the hope that he could perhaps attend a lunch talk. He couldn’t.

Finally, it seems that, at the end of the day, road blockages served no purposes:

TrafficDisturbance

Written by Alfonso Lamadrid

26 March 2014 at 12:56 pm

A high-level football (soccer) quarrel

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On December 17 Ombudsman Emily O’Reilly stated that there could be an appearance of “conflict of interest” on the fact that the European Commission had taken too long to open a State aid investigation affecting, among others, Athletic de Bilbao, the team apparently supported by Vice-President Almunia.

No kidding, look:

The Commission has failed to act on this complaint for more than four years. Not only is this bad administration, but to the European public it can look like a conflict of interest given the Commissioner’s strong links to one of the football clubs in question. In my inquiry, I have not looked into the merits of the allegations concerning the breach of State Aid rules. I trust, however, that the Commission will decide to open an investigation tomorrow in order to investigate the facts and dispel any suspicions.” (see here)

The day following this a bit absurd unusual reproach, the Commission did open an investigation which, by the way, had the effect of suddenly and exponentially multiplying the number of State aid experts in my home-country.

And last week we learnt –thanks to Lewis Crofts and MLex- that the Commissioner –who by now must be, understandably, fed up of being spied upon and even of having Spanish press report on personal matters- immediately responded to Ms. O’Reilly, explaining that:

I am also a Spanish citizen, a member of the Spanish Socialist Workers’ Party, a keen opera-goer, I enjoy cinema and I use the Internet every day (…). These elements are however irrelevant when it comes to the commission adopting decisions on State aid regarding Spanish cases, or granted by center-left governments, or benefiting cinema or culture in general, or to tackling antitrust issues with Microsoft and Google”.

It is certainly quite unusual in the EU context to point out at “apparent biases” in the way Ms. O’Reilly did, and it makes it more striking that the bias in this case consisted in supporting a given football club.

For instance, we’d absolutely never dare to suggest or imply that it may be relevant to the investigation that Ms. O’Relly is Irish and that Irish football teams haven’t fared well against Spanish teams  (with the last Irish defeat occurring in the course of the procedure before the Ombudswoman’s office!)   :)

By the way, an “interesting” fact for competition geeks: Ms. O Reilly previously worked at Magill and RTE, two of the parties to the well-known Magill case.

P.S.  For the record, we predicted this State aid to football clubs mess almost 4 years ago (see here).

Written by Alfonso Lamadrid

19 February 2014 at 1:55 pm

Pomposity v Social Value in Legal (and Antitrust) Scholarship

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I just saw this graph on Prof. Einer Elhauge’s LinkedIn account; the original source is Eric Posner’s blog (yes, the son of Richard Posner and a big name in his own right too).

I’d be curious to know about the underlying methodology (economic analysis seems to favor economy-related disciplines). It would seem as if an antitrust legal scholar had asked an economist to come up with a seemingly scientific study corroborating a given thesis. Not that this would ever happen in private practice…  :)

Written by Alfonso Lamadrid

9 January 2014 at 1:12 pm

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