Archive for the ‘GCLC’ Category
-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 (firstname.lastname@example.org). 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 email@example.com by 21 November 2014 with an expression of interest and a short outline of your proposed topic.
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… ;)
ERA (the Academy of European Law), with which we’ve collaborated a few times in the past, will be holding a competition workshop titled “Exclusionary Pricing under Art. 102 TFEU: Impact of Recent Case Law”.
It will feature our friend Damien Gerard (who, by the way, has succeeded Nicolas as Director of the Global Competition Law Centre), our first Friday Slotee Ian Forrester (he’s actually the one who proposed the Friday Slot name), and Manuel Kellerbauer, from the Commission’s Legal Service.
Judging by the absurdly high number of click-troughs to Wouter Wils’ now famous piece on Intel and the effects based approach that we’ve seen on this blog in the past couple of days, we guess that this event might be of interest to many of you…
For more info, click here.
P.S. The fact that this posts gets me a free pass for one of our most recent hires (Sam Villiers, you’re welcome) is merely incidental ;)
If you want to know everything about the use of commitment decision in EU Competition Law…