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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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On DG Comp’s fight against tax competition and tax planning

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Tax%20Planning

The European Commission has in recent years been very active applying State aid rules to tax provisions and regimes. The first paper I ever wrote back in 2004 (don’t read it, it was initially done for a tax course and I was a 20 year old student…) dealt with those issues; now, ten years later, I’ve taken interest again on this subject and am currently involved in a handful of cases dealing with the taxation/State aid interface before the General Court.

The fact is that the Commission has recently undertaken a more proactive and prominent role in resorting to State aid rules to public initiatives that, in its view, facilitate aggressive tax planning. Those of you attending the 2014 Competition Forum back in February will recall that the Commission held a panel on “Taxation and Competition Policy”, in which it inquired about the role of State aid investigations in tackling tax evasion, tax fraud and aggressive tax planning (a video recording of the discussion as well as the transcripts of the speeches are available here).

Against a background of lack of political consensus on how to deal with harmful tax competition and what is seen as tax avoidance, the Commission is keen on being regarded as a proactive authority (it’s not the first time that competition policy is used to achieve results that couldn’t be attained by governments and legislators).

As part of this effort, the Commission has sent information requests to various Member States in order to assess the compliance of tax ruling practices (advanced binding decisions in fiscal matters which may allow for special treatment for some particular companies) and patent box regimes (incentives designed to encourage companies to make profits from their patents) with state aid rules. Yesterday the European Commission went through the trouble of issuing a Press release aimed at naming and shaming Luxembourg for having failed to provide information (specifically, the names of thelargest 100 companies benefitting from the patent box regime) , invoking fiscal secrecy.

I was quoted yesterday in a Bloomberg piece in relation to this news, so I though it’d be interesting to recycle my thoughts explain my views in a bit more detail here:

This is a highly sensitive area where publicly visible messages (such as yesterday’s press release) may send powerful signals and give rise to concern on the parts of governments and companies, and where playing to the gallery might therefore be considered useful at times. That’s part of the game and shouldn’t surprise anyone.

But if we’re realistic, we should realize that (for as long as fiscal policy remains within the realm of nation States), there’s a limit to what can be achieved with State aid rules, and that it’s doubtful that the current investigation, focused on patent box regimes and tax rulings, will yield any meaningful results:

-       Patent box regimes have been authorized in several Member States, and the Commission has consistently accepted that they do not confer the selective advantages that would qualify them as State aid.

-       With regard to tax rulings –and whereas I’m not aware of the details of the investigation- even in the event that the Commission were to find incompatible State aids, this would only have the effect of suppressing divergent tax treatment within the Member State at issue (the Commission can only identify as aid deviations from “the system of reference” provided by the State’s standard tax regime ). This would therefore not at all address the main, big picture, concern linked to divergent treatment across, and beyond, different Member States.

It’d nevertheless be interesting to follow developments on this area. The amounts that could be in play for many companies would make any antitrust fine look insignificant. Anyone in need of a lawyer? ;)

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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

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

Antitrust and Tech Seminar Materials

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A few days ago I participated at a very interesting AIJA seminar in Bruges on Antitrust and Technology. All panel discussions were great, but I’m particularly grateful to Pablo Ibañez (LSE) and Kevin Coates (DG Comp) for their participation in the panel I moderated on interoperability issues, which was truly excellent (and not because of me).

The presentations projected at the conference have been made available at AIJA’s website (I include the hyperlinks below for your convenience):

  • Technology Licensing and the New TTBER

Dominic Muyldermans – Exclusion of termination for challenge of IP

Olivier Sasserath – Exclusion of the exclusive grant-back obligations

Anna Vernet – update after public consultation

Stefan Vollering – Big Change on a Minor Issue

  • Keynote speech – With great power comes great responsibility

Dr Philip Marsden – With great power comes great responsibility

  • Caught in the antitrust web -Regulating internet services

Gerardo Faundez – Travel as evolving market

Thomas Graf – The EU Google Investigation

Silke Hossenfelder – German Antitrust Cases in the Internet Economy

Sebastian Jungermann – Regulating internet services

  • Patent litigation and settlements -The limits of settlements and Pay-for-delay

Tamar Dolev-Green – Pay-for-delay

Kyriakos Fountoukakos – Patent litigation settlements

Simone Gambuto – latanoprost-pfizer saga in Italy

  • Patent strategies and abuse of dominance What are the antitrust boundaries

Miguel Rato and Nicolas Petit – Abuse in Technology Enabled Markets

Maria Troberg – Patent Strategies and abuse of Dominance

Jan Peter Van der Veer – An economic perspective on patent strategies

  • Competition law and interoperability

Pablo Ibanez Colomo – Interoperability issues under EU Competition Law

Alfonso Lamadrid – Interoperability

 

(Image quite possibly subject to copyright)

Written by Alfonso Lamadrid

20 February 2014 at 11:22 am

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In the course of the past few days and weeks some friends have asked us to advertise a few upcoming Competition-related happenings. We’ve taken our time, but here’s a compilation of stuff worth knowing about:

The 3rd edition of Concurrence’s Antitrust Writing Awards is now ongoing.  You can vote for your favorite piece before the 1st of March.

Harvard’s European Law Association (HELA) has scheduled its first Antitrust conference, to be held on 24 March. It will deal with the informal application of  competition law in the U.S. and the EU. Click here to check out the call for papers and to find out more info: Hela_Call_Abstracts_updated (and apologies to Zena Prodromou for not having done this before!)

On 30 January the ABA’s Section of Antitrust Law will be holding a networking reception + a panel (Inquiries into Competition and Alleged Misconduct in UK Financial Services) in London. Click here for more info.

The annual junior competition lawyer’s conference will take place on 31 January. This is an initiative that we’ve always supported and that would be nice to see replicated in places other than the UK. Click here for more info.

And also on 31 January we will be hosting the first seminar within the competition law course that Luis Ortiz Blanco and I co-direct in Madrid. It will be devoted to Recent developments regarding the application of Article 101 TFEU (including damage claims, anti-competitive agreements in the pharma industry and the fight against cartels in a context of economic crisis), and will feature Fernando Castillo de la Torre (EC’s Legal Service), Eric Gippini Fournier (EC’s Legal Service), (Carlos III University, EAGCP and CEPR), Mario Mariniello (Bruegel), Helmut Brokelmann (MLAB), Maria Luisa Tierno (DG Comp), Natalia Fabra (Universidad Carlos III, EAGCP), Flor Castilla (EC’s Legal Service), Borja Martínez (Uría Menéndez), Antonio Martínez (Allen&Overy), Jesús Alfaro (Linklaters) and Gerald Miersch (DG Comp). I’ll post the final program here as soon as it’s ready.

Very importantly, a reminder is in order: on February 7-8 AIJA and the College of Europe will be holding the not-to-be-missed conference Antitrust 2.0 Competition Law and Technology.

P.S. We’ve also been asked to mention that the Swedish Competition Authority is taking steps to publish decisions in English. Our source suggests to present this as one of the major 10 developments on the year, which I’m a bit hesitant to do ;) However, the Swede’s move is commendable, particularly when compared to what other national competition authorities do (the new Spanish authority doesn’t even have an English version for its webpage…)

Written by Alfonso Lamadrid

8 January 2014 at 5:49 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

The ultimate conference on competition law and technology

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Program

As anticipated a few days ago, on 7-8 February AIJA -with the collaboration of the College of Europe- will be holding a two-day conference on: Antitrust 2.0- Competition and Technology.

The conference will cover all hot issues in current antitrust enforcement in the IT sector, and will feature an impressive line-up of panelists (and then also Nicolas and myself).

It will be very much worth the visit to Bruges. The program is available here: Antitrust 2.0- Competition law and technology

P.S.  Two other not-to-be-missed events (ones that I’ve been anxiously awaiting for quite some time) will be taking place in the next 24 hours: see here and here    ;)

Written by Alfonso Lamadrid

10 December 2013 at 11:01 am

Forthcoming events

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GCLC Logo

On 23 May, the GCLC will have a lunch talk on Compliance Programmes in EU and National Competition Law.

Hendrik Bourgeois (GE), Steven Preece (OFT) and Wouter Wils (European Commission) will discuss this controversial issue.

Ahead of this event, some reading suggestions: Wouter has published a thorough paper in support of the view that compliance programmes should NOT be rewarded by agencies. Interestingly, a friend of this blog, Damien Geradin (Covington) has recently published a reply to Wouter, where he argues to the contrary. I have myself written that no rewards should be given for such programmes… but now that I have read their prose, I have to admit that I have done this less eloquently than those two antitrust titans.

Another friend of this blog, David Mamane, has asked us to advertise the programme of a forthcoming interesting seminar organised by the International Association of Young Lawyers (do I qualify for young?). This event will be devoted to competition law issues in regulated industies, and it will be held in the beautiful city of Marseille.

Written by Nicolas Petit

11 April 2013 at 9:46 am

Posted in GCLC, Our Organizations

Thoughts on the Commission’s Decision in UPS/TNT

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My back of the envelope analysis of the Commission’s prohibition decision in UPS/TNT, following yesterday’s GCLC lunch talk.

Some facts first - With this decision, the Commission prohibited a merger to duopoly in the express mail business. The Commission found that the merger would have given rise to an overly powerful n°2 – DHL being the leading player – and to the disappearance of a “maverick“, TNT  (a so-called “gap case” ). Whilst efficiencies were deemed sufficient to outweigh the restrictive price effects on a number of geographic markets, the balancing test in central and eastern European markets yielded a negative outcome. The parties did not manage to convince the Commission that their “last minute” proposed remedies package (divestiture of parts of TNT’s business to La Poste + 5 years’ access to UPS/TNT’s aircraft fleet) would allay its concerns. The Commission had thus no other choice but to block the merger. The deadline for appeal exprises next week. My feeling – based on smoke signals – is that the parties will appeal before the General Court. Unfortunately, the decision is not yet published. But the Commission has published a press release and a comprehensive MEMO on the decision.

On a possible toughening of EU merger policy - Contrary to what has been written in the press, the case does not suggest a harder merger policy. The headcount of prohibited mergers for Almunia currently lurks at 4, where Van Miert and Monti respectively had shot down 9 and 8 mergers.  Rather, this decision shows that merger scrutiny remains effective, even in a period of merger morass and of depressed capital markets.

On the alleged protectionist instrumentation of EU merger policy - In the US, journalists were prompt to compare the EU with China, arguing that “the Commission uses antitrust enforcement to curb the efforts of American companies to expand in their countries”. To me, this is ill-thought: the prohibition decision also protects FedEx, a US company, from the fierce competition of DHL and UPS .  

On the missed opportunity to “industrialise” EU merger policy –  The Commission refused to view La Poste as a “suitable purchaser” for the parties’ proposed divestiture. From an industrial policy angle, one may argue that the Commission has thereby counter productively prevented the rise of a second European giant in the parcels business, besides DHL (Deutsche Post). Now, it is well known that the Commission also seeks to open postal markets to competition. A further strenghtening of La Poste may have undermined the Commission’s parallel liberalisation agenda.

On the perils of economic analysis in EU merger policy – Let’s be frank: in this case, the parties awkwardly offered to the Commission the rope to hang them. To prove that the disappearance of TNT would lead to price increases, the Commission relied on the price concentration study initially provided by UPS and TNT. It seems the Commission just had to tweak some numbers, and what looked like a minor positive correlation according to the parties became a significant impediment to effective competition (the parties did not deny the existence of a price effect, but  they argued that it was de minimis in magnitude) which could only be offset by redeeming efficiencies. In other words, by pushing this price concentration study forward, the parties lifted the burden of proof away from the Commission, and placed themselves immediately in the uncomfortable position of having to argue efficiencies. The bottom line: economic analysis can backfire.

On the interpretation of the “efficiency defense” in EU merger policy - This case is probably one of the first merger cases in which the Commission accepted that – at least on some markets – cost efficiencies would be passed on to customers. So far, the Commission had often accepted the existence of efficiencies, yet rejected them as either insufficient in magnitude or on the ground that they would not be transferred to customers. This is a very positive evolution in merger policy.

On the fallacious distinction between fixed and variable costs in the context of the “efficiency defense” – The Commission rebuffed the administrative efficiencies (overheads) advanced by the parties on the ground that they constitute fixed cost efficiencies, i.e. one-offs which have no impact on prices charged to customer. To me, this is bad policy. Whilst firms do not seek to recoup ALL their fixed costs in their short term prices, most firms try to recoup some of their fixed costs in their short term prices. So if, with a merger gives rise to fixed costs reductions, then there is less to recoup on customers in the short term. The bottom-line: fixed costs efficiencies have an influence on short term pricing. Moreover, “one-offs” fixed cost efficiencies have an additional beautiful feature: they are “structural” efficiencies that benefit to consumers forever, regardless of market evolution (growth or decline). They are thus more plausible, and likely to unravel, than “conjonctural” variable costs efficiencies.

On the interface between EU merger policy and Article 102 TFEU - To reject the proposed remedy package, the Commission speculated that La Poste would likely not develop its own aircraft fleet, so that after the expiration of the 5 years’ access remedy, it would not exert significant competitive pressure on the integrators (DHL, UPS/TNT and FedEx). This is not very convincing, for both factual and legal reasons. First, La Poste has already started a process of vertical integration. Second, after the expiry of the 5 years commitment, the Commission remains able to maintain an access remedy under the Article 102 TFEU essential facilities doctrine.

On conflicts of interests in EU merger policyRumour has it that at the hearing, the parties infuriated a big fish from DG COMP. The reason? The official who previously held his position had dared appearing as consultant for the parties.

On the scope of the UPS/TNT decision - The Decision concerns only 29 countries in the EEA, and not 30. The explainer it that the Commission did not manage to get any significant data on Liechtenstein, so it decided to drop this country from its investigation.

For more on this, see A. Lofaro’s excellent RBB Brief here.

The ppts of the speakers at yesterday’s lunch talk will shortly be made available on the GCLC’s website.

And thanks to Stephan Simon for suggesting to title the event after AC/DC’s “TNT“, rather than after Queen’s “Another one bites the dust“.

Written by Nicolas Petit

5 April 2013 at 12:06 pm

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