Chillin'Competition

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Archive for the ‘Brussels School of Competition’ Category

The General Court on the scope of the Commission’s powers to request information

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On Friday 14 March the General Court issued seven Judgments in cases T-292/11, T-293/11, T-296/11, T-297/11, T-302/11M T-305/11 and T-306/11. We represented one of the seven applicants (needless to say, the opinions below are exclusively my own, and in no way can be attributed to my client or my colleagues).

I had already anticipated those Judgments noting that -irrespective of who the prevailing parties were- they would be of great interest and procedural relevance. [The Judgments came out while I was lecturing on competition procedure at the Brussels School of Competition, so I discussed them almost live].

The cases concerned seven appeals lodged by cement companies against massive -arguably unprecedented- requests for information, and they are important because the Court was asked to clarify whether there are any real limitations to the Commission’s investigative powers.

There have been two groups of Judgments:

-In six cases the applicants grounded their appeal on the lack of motivation of the information request. In those cases the GC has ruled (a) that although “it is true that “the presumed infringements [were] set out in very general terms which might well have been made more precise”, they have the minimum degree of clarity in order to be able to be considered to be consistent with the requirements of EU law; and (b) that even if “the size of the workload caused by the volume of information and the very high degree of precision in the response format imposed by the Commission cannot be reasonably disputed”, that workload was not disproportionate in the light of the necessities of the enquiry and the extent of the presumed infringements.

[Intermission: Too often, when the Court decides to dismiss an application it practically denies any reason to every argument made by the applicant). This wasn't the case here, and the Court was objective and transparent enough to acknowledge that there could be problems, but that they were overridden by effectiveness considerations. I like it better this way].

-The content of the Judgment in the seventh case (T-296/11 in which we acted for the applicant) is different, as explained in the Court’s press release http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-03/cp140035en.pdf

Instead of focusing our arguments on lack of motivation (which we thought would at most have only given us a temporary victory), we had posited that the criterion of “necessity” in Art. 18 of Regulation 1/2003 should be interpreted not in light of what the Commission intends or hopes to find, but in the light of the elements that the Commission has and that raise the suspicion triggering the investigation. We claimed that otherwise the criterion of necessity would be devoid of any practical significance.

The GC has accepted the theory (as it did in Prysmian and Nexans -now pending before the ECJ- regarding inspections). According to the GC, the Commission is not obliged to disclose to the companies the preliminary evidence at its disposal, but it must have enough evidence to justify the information request (paras. 38-40).

In this particular case, and since the Court acknowledges we had “put forward factors capable of casting doubt on the sufficiently serious nature of the evidence concerned”, the Commission was very exceptionally asked to produce a summary of its file. Luis Ortiz Blanco and myself were asked to go to Luxembourg to access it and make observations without being allowed to disclose anything not even to our client [I'm not disclosing anything confidential because this is all explained in paras. 23-26 of the Judgment]. This is what explains that a great part of the Judgment is redacted as confidential.

Obviously I can’t say or even hint at anything that’s not been disclosed in the non-confidential version of the Judgment. Essentially, the Court explains that in the light of the Commission’s file the Institution could have validly addressed the exhaustive and exhausting information request to the applicant. The reasoning (mainly contained in para 59) is that even if we did offer an alternative interpretation of the elements in the file, the Commission cannot be asked at a preliminary stage to have evidence so consistent as to be sufficient to establish an infringement; it’s enough to have evidence that -at a preliminary stage and absent third party contextualization- would have arouse a reasonable suspicion.

The lines of what’s reasonable are of course blurry, and the Court’s approach is -rightly or wrongly- deferential to the Commission and to the need of safeguarding the effectiveness of its investigations, particularly at an early stage. Some may fear that if Courts started annulling requests for information (or Phase I clearance decisions, to pick a “random” example) then the floodgates would open. However, failing to annul those categories of decisions systematically and regardless of their merits or lack thereof those may also be akin to conferring carte blanche on the Commission, and that (regardless of the unquestionable good intentions of the Institution) might also have drawbacks.

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Written by Alfonso Lamadrid

14 April 2014 at 9:38 am

Two-sided markets in merger and abuse of dominance cases

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When you have a 8 9 10 to 9 ? job it’s often quite hard to do things on the side, and, between us, it may not make much sense that many of them are work-related. Only this month, and in addition to ordinary work -which included 5 Court deadlines- and blog posting, I had to lecture in Madrid about 102 (intro, tying and refusal to deal in 3 hours), participate in the panel on interop at AIJA’s antitrust and tech conference on a Saturday morning, finish and present a paper on evidence in cartel cases, and lecture -next Friday- for 6 hours at the Brussels School of Competition on procedure. And since I thought it would be the quietest month in sight, I took a week off for my postponed Christmas holidays (not very smart, no). Overall I spent almost as much times in planes (11 flights this month) as in the office, and had to compensate at the cost of sleeping hours.

Why should you care about all this? You shouldn’t; this is all to explain why during this whole month I kept on swearing myself that -blogging aside- I would refuse any non-work projects for the next few months. Well, said and not done:

On 3 April ERA will be hosting an afternoon workshop on Two sided markets in merger and abuse of dominance cases here in Brussels. They couldn’t have chosen a more interesting topic, so I gladly accepted to chair it. Not only is the subject matter a fascinating one, it will also be dealt with by two great panellists: Thomas Graf (Cleary Gottlieb) and Lars Wiethaus (E.CA Economics).

The program is available here: Two Sided Markets in Merger and Abuse of Dominance Cases (ERA)

Written by Alfonso Lamadrid

26 February 2014 at 1:10 pm

News

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Gradués

Next week:

  • On 17 December, we’ll have a GCLC lunch talk on the Aegean/Olympic merger decision. S. Simon (COMP), B. Durand (RBB) and A. Guttermuth (Arnold & Porter) will be our speakers. Registration here.
  • On 18 December, we will have the graduation ceremony of the Brussels School of Competition. This is an open ceremony, and you can register here. There will be tons of good food and  top notch tier antitrust lawyers. Not sure which of the two is the seller :). Above, some of last year freshly graduated studs.

Recently, our friend David Henry and his friend David Ashton have published a timely, thorough, thoughtful book on Competition Damages Actions in the EU. The book is impressive, it makes a thorough exploration of how the main EU MS have dealt with antitrust damages to date. Congratulations to them.

Yesterday: I was at a conference in Paris giving a presentation on IP and antitrust law. And I finally spoke of lions, black swans and butterflies. For more, see below (2 files, read 1 before 2).

Presentation ASPI – Rappel des grands principes applicables à la relation DEC-DPI (2) Presentation ASPI – Rappel des grands principes applicables à la relation DEC-DPI (1)

 

 

 

 

 

Written by Nicolas Petit

12 December 2013 at 5:22 pm

One word

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REGISTER! (here)

Written by Nicolas Petit

6 August 2013 at 8:55 pm

Best Xmas e-card so far

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go

A quick post.

Our email boxes are flooded with Xmas e-cards those days.

My preferred so far is Cromo’s (Crowell & Moring). Check it out, it is really nice.

Above, the Brussels School of Competition‘s Xmas e-card.

 

Written by Nicolas Petit

21 December 2012 at 10:33 am

Last Call – Conference on EU Competition Law and Financial Markets

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The Brussels School of Competition (BSC) and the Liege Competition and Innovation Institute (LCII) are pleased to invite you to their joint conference on 22 November 2012.

This event is devoted to Competition Law and Financial Markets (see link to programme at the end of this post). Issues covered span the emerging role of competition law amidst large scale price fixing allegations in the financial industry, the prohibition of the Deutsche Börse/NYSE merger, open and fair access to financial infrastructure, competition in credit rating services, the trade-off between competition enforcement and financial stability, the impact of prudential rules, etc.

To discuss those issues, we have invited a range of triple A experts, including EU Commission and ECB officials, industry representatives, lawyers as well as leading academics.

Programme for download: INVITATION BSC – 22 11 12

For more information, please contact Cécile de Grand Ry (Phone: +32 2 515 08 36 – @:cgr@vbo-feb.be )

Written by Nicolas Petit

19 November 2012 at 11:56 am

Conference – EU Competition Law and Financial Markets

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On 22 November 2012, the Brussels School of Competition (BSC) and the Liege Competition and Innovation Institute (LCII) will hold in Brussels a joint conference on Competition Law and Financial Markets.

Issues covered span the emerging role of competition law amidst large scale price fixing allegations in the financial industry, open and fair access to financial infrastructure, competition in credit rating services, the trade-off between competition enforcement and financial stability, the impact of prudential rules, etc.

No State aid on the menu, there’s been far too many events devoted to this topic in recent months.

To discuss those issues, we have invited a range of triple A experts, including EU Commission and ECB officials, industry representatives, lawyers as well as leading academics.

More info on the programme can be found here. The registration form is accessible via this hyperlink.

Written by Nicolas Petit

11 September 2012 at 5:33 pm

Brussels School of Competition

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I had drinks last night with my good friend Charles Gheur from the Brussels School of Competition (“BSC”).

It sprung to mind that I had not yet advertised that the registration process for the 2012-2013 edition of the LL.M  was opened .

There’s a bunch of new things for this third edition of the programme, not the leasts that (i) Fred Jenny stepped in and will co-teach the module on abuse of dominance, and that (ii) señor Lamadrid de Pablo has officially been drafted (he is a basketball fan) to join the team that teaches procedural matters.

Together with the fact that our studs are primarily in-house lawyers from large corporations (Microsoft, Umicore, Toyota, Mastercard, Basf KBC, Bayer, Distrigas, Verizon, etc.) this should convince young Brussels lawyers to relocate towards us instead of  following the painful King’s College long distance programme.

Written by Nicolas Petit

17 August 2012 at 12:31 pm

Self promotion

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We like to self promote at chillin’competition.

For instance, you will have noticed from yesterday’s post that Alfonso likes to incidentally recall that he works on a pending case against a giant US corporation.

So I take my turn to self promote a little, with a recap on recent and forthcoming chillin’competition-related activities:

  • I was in Helsinki with my friend Miguel Rato (Shearman & Sterling). We were invited to deliver a presentation at the 11th Annual Conference of the Association of European Competition Law Judges (AECLJ). With 60 judges from accross Europe in the room (including judges from Luxemburg), Richard Whish, Alexander Italianer and Nick Banasevic on the podium, this was a very challenging talk. I attach the presentation here: Slides – Petit & Rato – Abuse in Technology-Enabled Markets – 11th AECLJ Conference (14 06 12. A paper on “Abuse in Technology-Enabled Markets” is in the making;
  • The registration process for the 2012/2013 edition of the LLM in Competition Law & Economics at the Brussels School of Competition is now opened. We have a new brochure in which you will find a number of changes. A teaser: F. Jenny will teach on abuse with JF. Bellis, Alfonso’s existence is now official and several ***** economists have joined;
  • We have a GCLC lunch talk this Friday, on the Commission’s review on the rules on technology transfer agreements. Our speakers are Donncadh Woods (DG Competition), Frédéric Louis (WilmerHale) and Paul Lugard (Tilburg Institute for Law and Economics (TILEC) and ICC Commission on Competition);
  • Ana Paula Martinez (Levy & Salomao) is the editor of a new, impressive volume entitled Temas Atuais de Direito da Concorrencia with written contributions (in English) from S. Salop, E. Elhauge, D. Geradin, Mariana Tavares de Araujo, Ian S. Forrester and Francisco Enrique González-Díaz. Here’s the leaflet and table of contents: GED_LS-#845180-v1-2012_Brazil_Competition_Book
  • I was in Strasbourg yesterday to lecture on IP and competition law at the CEIPI and I will be in Bruges tomorrow to give a presentation at the 8th ELEA symposium. It is a very busy week, like last week… and hopefully unlike next week.

Costs Conference – Last Call

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A last call for our conference on costs next week (I have pasted below the earlier annoucement, Tomra is out).

I would be very grateful if our readers could disseminate the programme within their respective organisations.

To help clarify how and why costs are used in competition proceedings, the Brussels School of Competition(BSC) will organize on 9 May a half-day compliance seminar (this seminar was due in early 2012, but was rescheduled).

Amongst other things, this seminar intends to review recent case-law developments, in particular the recent judgments handed down by the EU Courts in the Post Danmark (C-209/10) and Telefónica (T-336/07) cases. Hopefully the Tomra ruling will also be out by this time [it is out].

In line with the interdisciplinary spirit of the BSC, this seminar attempts to “blend” competition law and economics. Under each selected topic (see  agenda here), it thus brings together a team of one lawyer and one economist, who will seek to provide an integrated perspective on the issue.

This event is a joint initiative of the BSC and of the Institute for European Legal Studies (IEJE) of the University of Liege (ULg). The registration form can be found here.

Written by Nicolas Petit

3 May 2012 at 12:21 pm

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