Archive for the ‘Our Organizations’ Category
I’m typing live from the Swedish Competition Authority’s top-notch Pros and Cons conference, which in this 13th edition deals with the pros and cons of two-sided markets.
Despite the fact that the conference has been opened by myself and will be closed by Nicolas Petit, I promise this is a serious and highly reputed event.
In my intervention I have focused on what I’ve called the double duality of (practices carried out in) two-sided markets. A paper on the subject is in the pipeline (to be finished when work and baby allow), but most of the views I just developed are contained in this presentation (comments would be very welcome):
-The talk of the town these days –as reflected in our most recent posts- is about “Lux leaks” and the uncomfortable position in which it places President Juncker, State aids and our victory in Court last week. But there’s a paradox regarding these cases that has surprisingly not received much attention: do people realize that if Luxembourg’s rulings were declared to constitute illegal State aid the result would be that Luxembourg would receive several thousands of millions of euros??
- This blog is intended not only for us to get things off our chest, but also to foster some debate. In this context, I would suggest you to read the most recent comments on this and this post. You won’t find that sort of discussions in many other places and this is what makes this blog different; we’re very fortunate to have such active and sapient readers and we probably don’t emphasize that enough.
- The comments I just referred to reveal that there are still a few open issues regarding, in particular, the concept of restrictions by object and on how they can avail themselves to objective justifications. For those interested in clarifications, we remind you about the forthcoming ERA event on the subject (Restrictions by Object after Cartes Bancaires and the Commission’s initiatives); for more info click here.
- Btw, for those needing clarification on a wider set of issues, we will soon be announcing the program of the 18TH edition of the Competition Law Course that Luis Ortiz Blanco and myself direct in Madrid from January to March, with the participation of, among many others, my former and my current blogging partners. If you are interested in attending or know of someone who might be, you can drop me a line (email@example.com). This course is, by the way, where I first met Nicolas, interestingly through the intermediation of his subsequent replacement on this blog, Pablo.
- Thanks to Competition Policy International we have found this piece at the intersection of competition law and religion titled Is there a Vatican School for Competition Policy? For the record, we were pioneers in writing on the link between religion and antitrust: see my (2010!) post on An Antitrust Challenge to God
- Our friend Stephen Ryan, now at the Hong Kong Competition Commission, has informed us about a new media campaign initiated by the authority to inform the general public about the benefits of competition (see here and here). We’ll add these to our list of candidates for the Antitrust Oscars. The authority is also active on other fronts, having just released draft guidelines on the interpretation of the Competition Ordinance for public consultation.
My inactivity on the blog this week has to do with a couple of Court deadlines and me finding my way through the intrincacies of fiscal rules, telecomm technicalities and trading jargon on different matters (ah, the renacentist life of the competition lawyer…). I’ll try to compensate for my non-posting guilt feeling with some advertising:
-Given that our previous post on the Commission’s new initiative for recruiting competition specialists seems to have attracted quite some interest, we thought that you would also be interested in the information published today regarding all details of the competition competition; if so, you can read all about it here.
-Many experts on EU Competition Procedure will be gathering in Brussels on 6-7 November at the Global Competition Law Centre’s 10th annual conference titled “10 years of Regulation 1/2003: challenges and reform“. The programme and all registration info are available here.
- The 9th Junior Competition Conference -set up by the editors of the Competition Law Journal and which we have always supported and gladly advertised- will be taking place on Friday 6 February 2015. It will have two themes: (1) The New Frontier: Competition Law and the Financial Services Sector; and (2) Control of Unilateral Conduct and the ‘Goldilocks’ Dilemma: Too Much, Too Little or Just Right? For details of the Call for Speakers, please visit this web page. If you would like to speak at the conference, please contact the organizers at firstname.lastname@example.org by 21 November 2014 with an expression of interest and a short outline of your proposed topic.
(Cautionary note: as this post is rather lengthy and rather personal, you won’t lose too much if you skip it).
Last Friday Nico announced that he was quitting Chillin’Competition, so this blog loses its founder and main figure (although it’s true that there weren’t so many).
In order to dispel the rumors that seem to be going around I’ll address them directly: no, it’s not a hoax; no we haven’t fought (in fact we had lunch together today, as witnessed by some prominent Commission officials, one of whom even said that it was good to see that we were still talking to each other despite the rumors…); no he didn’t have an affair with my wife (at least not that I know of) nor me with his girlfriend (apparently because I’m not attractive enough), and no, his move is not due to political pressures from his home country after our posts on Arnaud Montebourg (see here and here) provoked the French Government’s collapse.
So, yes, Nico is leaving the platform he created back in September 2009 (I only joined a few weeks later –on 8 October 2009-, initially as a guest, and I’m still grateful for his invitation for me to join, particularly because back then he was already well known and I was a very young associate at a Spanish law firm whom he really didn’t know that much). For some reason it worked, and in the course of these 5 years –time flies- we have written no less than 960 posts(!) and had 800,000 visits. His creature fared well.
Nicolas and I certainly didn’t have the same views on some substantive issues and we naturally did have divergences, all of them because he always wanted me to be more politically incorrect and I always told him not to play the enfant terrible. But I think the mix contributed to this blog being less one-sided and hopefully more interesting.
As for the real reasons behind this decision, he can explain better, but I think he summed it up well when he said that “the thrill is gone”. His quitting the blog fits within a reshuffling of priorities that also includes his resignation as Director of the Global Competition Law Center. As I’m writing I’ve just recalled that, interestingly, both of these moves were already anticipated in a post he wrote 3 years ago listing possible things to quit from “in order to refocus a little on things that really matter”.
As he said in his farewell post, we had been discussing this for a while. I even wrote here back in July that “you should expect some significant changes in Chillin’Competition after the summer holidays” . To tell the truth, at the time I was thinking of quitting myself.
I saw plenty of reasons to do it. For one, finding the time to think things through and write properly about them was becoming impossible, with the result that our publications weren’t nearly as good as we’d like them to be and wouldn’t reflect well on us. On top of that, which has been a constant over these years, I felt that what used to be a fun exercise now had become an obligation, that I was running out of ideas worth your and my time, and that what used to be a fresh approach to things wasn’t really anymore. No less important, what I enjoy is actual lawyering, and was –and still am- quite weary of being seen more as a blogger than as a lawyer, even if a bit of that is, I guess, inevitable. And most important of all, my first son was about to be born (Edu came on August 30th) and I want to save all my non-working time for him. As you can see, and as this esteemed guy observed back then over a beer or two, it really sounded like I’d made up my mind. [Actually, all this is starting to sound compelling again!]
This is all to say that when Nicolas gave me some of the same arguments in support of his contemplated move, I understood him perfectly. And the fact that he’d already quit posting 6 months ago whilst at DG Comp certainly broke the inertia and made the decision easier for him.
At the same time, it also made me reconsider my own position. For one, I thought it’d be a pity for the two of us to leave and let the blog die; not because it has any social value –which it obviously hasn’t and we surely could do more useful things with our time- but because, after all, we’ve had fun doing it, we’re even told that at times our writings may have even had an influence in the application/interpretation of the law (which, if true, I’m not sure is positive for the law, though) and it has also enabled us to meet very interesting people.
Many advised us to continue with the blog because it is good as a matter of “visibility”. Indeed, when we have asked for advice about terminating it, many –particularly lawyers- replied that we shouldn’t do it because it gives us visibility, as if that were per se a good thing. To that I consistently responded that visibility cuts both ways, that any stupidity we might write would also be very visible, that sometimes it’s preferable to remain silent and look stupid than to open one’s mouth to confirm that appearances don’t lie, and that it’s a bit of a problem that our most visible work is precisely that which –unlike real work- is done hastily and not always upon careful reflection.
I confess that the main reason why I’ll remain writing here even with Nicolas gone, at the least for as long as the baby is still a baby (I see too many people in this job with skewed priorities), is one of intellectual hygiene. For some reason I can only think properly about something when I write or teach about it. So even if it may be uncomfortable to commit to finding the time and the ideas to write here, and even if I’ll have to remain being careful with balancing it with my real job, I guess this is a good way of forcing myself out of the comfort zone to continue learning.
Since I don’t think it’s good for the blog to be run only by a practitioner like myself, a new addition to the team will be announced in the coming hours. Your ideas and suggestions on the way to go will also be very welcome.
A last note: Nicolas is quitting regular posting but I hope that he’ll be willing to contribute from time to time. We will also continue to work together in the Brussels School of Competition, the Madrid course and possibly in some other projects under the Chillin’Competition brand. And you won’t get rid of ads, because I’ve promised him to continue advertising all his events and publications here.
In sum, thanks so much, Nico, and you know you’ll always be most welcome if you ever want to return chez toi.
On the tax-related State aid investigations. Many newspapers opened this week with big headlines on the alleged news that the Commission had adopted a “preliminary decision” regarding the State aid probe into Apple (see e.g. here). I’m a bit intrigued by what’s behind this press campaign; the only news is that the Commission has published in the Official Journal decisions that had already been adopted before the summer. This sort of publication is never news, so why the fuss about it now is beyond me.
[It is, by the way, interesting to observe how some developments are “sold” twice, whilst others –including the closure of infringement proceedings against luxury watch manufacturers- go under the radar (disclaimer/advertising: my firm represented one of the main companies subject to that investigation)].
Given that I’ve lately been working on loads of tax-related State aid cases before the General Court I’ve developed a particular interesting in these matters. We might comment more in-depth on them in the future; for the moment, I’ll simply point out that by questioning not national taxation systems or tax rulings in general but rather APAs (advance price agreements) the Commission might be opening Pandora’s box (how many multinationals –including many EU ones- have similar arrangements?; could all of those now be challenged under State aid rules? ) For my previous comments on these issues, see here.
On the Google search investigation. The Google case has been on the news again, which, paradoxically, is no news. It’s been a while since we last commented on this investigation (partly because there wasn’t anything substantial on which to comment, and partly because the susceptibility around these issues is quite acute). One of the main contributors to this blog –Pablo Ibañez Colomo- gave his views to Global Competition Review a few days ago; Pablo explained that “[i]t is very controversial to argue that, as a rule, article 102 [prohibiting abuse of dominant position] requires all dominant companies to give access to their facilities – including operating systems or search engines – on non-discriminatory terms and conditions (…) I do not believe there is case law supporting this understanding of the provision.” According to Pablo, “there is the expectation that remedies are justified even if it is not clear why Google’s conduct is illegal”.
Last time I wrote about the case I made some comments on the politicization of competition law enforcement (see here). Since then, Vice-President Almunia has explained that politics are being left aside of the case (here, ehem). So, politics aside, let me focus on a purely legal point without discussing who’s right or wrong:
The complainant’s interesting main legal argument now seems to be that Google’s proposed commitments do not address the concerns set out in the Commission’s preliminary assessment (see, e.g. here). This a most interesting claim, and one on which many –including myself- can’t really comment because we haven’t read the preliminary assessment. In fact, no one other than Google was supposed to have seen it (according to the Manual of Procedure, “the complainant has no right to a hearing or to receive a (non-confidential) copy of the Preliminary Assessment or to have access to information”). In this case, however, the Hearing Officer granted a request for access on the part of some of the complainants (see the previous hyperlink for a source).
Now, consider the future implications of this move: in the past the Commission could overdo a bit its concerns in its preliminary assessments because, after all, they are not subject to the same requirements as the SO, would not be subject to any rebuttal on the part of its addressee, unlike SOs do not need the approval of the Commission’s President and, at most, could give the Commission a stronger hand in commitment negotiations (which, regardless of what Alrosa says, obviously exist). Now that the Commission is aware of the fact that preliminary assessments will/could be accessed by complainants, will it have to show more self-restraint? Will this have an impact on future commitment negotiations? Would these problems be avoided if the Commission was required to adopt a proper SO prior to entering into commitment negotiations?
On Android. I also saw some headlines this week anticipating, once more, the initiation of a formal investigation into Android. As frequent readers will recall, I’ve already written quite extensively about this (see here). On October 15th (the same day in which, by the way, the Commission will be making public an avalanche of decisions…) I’ll be speaking about it at a conference in Brussels, so in case anyone has thoughts about the case feel free to send them my way.
On the Euribor probe and the role of the Ombudsman. Last week, the fact that Crédit Agricole had resorted to the Ombudsman to complain about a possible bias on the part of the Commission also hit the news. CA’s claim has to do with the Commission having adopted a settlement decision finding a cartel infringement in relation to the Euribor prior to concluding the infringement proceedings against those who chose not to settle (see Gaspard Sebag’s piece for Bloomberg here). This obviously raises most interesting procedural questions, which I’d nevertheless tend to think pertain more to the realm of judicial review than to the Ombudsman. The piece includes a quote of mine which is a candidate for the prize of ‘dullest comment of the year in the press’: “It’s always uncomfortable to have to deal with the Ombudsman”. A deep thought that is… ;)