Archive for the ‘Lunch talks and other events’ Category
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.
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)
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
- Keynote speech – With great power comes great responsibility
- Caught in the antitrust web -Regulating internet services
- Patent litigation and settlements -The limits of settlements and Pay-for-delay
- Patent strategies and abuse of dominance What are the antitrust boundaries
- Competition law and interoperability
(Image quite possibly subject to copyright)
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…)
- 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).
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
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 policy – Rumour 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“.
At the GCLC, we have just scheduled a promising lunch talk on the Commission’s UPS/TNT Decision on 4 April.
Our speakers are Stephan Simon (DG COMP), Winfred Knibbeler (Freshfields Bruckhaus Deringer) and Andrea Lofaro (RBB Economics).
For registation see here.
For more, see Andrea’s excellent RBB Brief hereafter: RBB_B41_Brief_V3.
Last Friday I was invited to speak on these issues at a GCLC lunch talk on “
I might develop the content of my presentation in a series of forthcoming posts, but today we’ll simply provide you with the presentations projected at the lunch talk.
I had the impression that the audience was a bit surprised at my rather unusual power point, which you can see here:
GCLC_Google_Lamadrid (looks better if you play the slide show; also, it’s password protected, so click “read-only”).
As I explained at the event, I decided to run the risk of projecting this ppp when I learnt that Google had pledged before the FTC not to ask for injunctions aimed at protecting its intellectual property ;) Actually, I’m much more scared of my firm’s format-strict marketing department….
P.S. A necessary and fair disclosure. The power point I had in mind became real thanks to Enrique Colmenero, a terribly nice and smart guy, a techie and an entrepeneur who is now fortunately working with me on a few tech-related cases.
Heard at today’s GCLC lunch talk, seemingly in defense of Google’s search manipulation tactics: Bing is also linking preferentially to its own related services (maps, etc.). So the complainants, and Microsoft in the first place, should take a pass.
On further thoughts, this is a pretty weak argument.
First, the idea underpinning this argument seems to be that Google’s strategy is standard industry practice. And the upshot would be that Google’s conduct has a rational business justification. But the fact that a course of conduct is frequent within an industry, and that it has been replicated by rivals, does not make it presumably lawful. Many drivers breach the law by speeding everyday, yet this is no reason to hold their conduct lawful. Similarly, the fact that conduct is rational is not a cause of antitrust immunity. Collusion is often rational, yet it is strictly forbidden.
Second, this argument actually works in favour of Microsoft’s allegations. It is precisely because preferential placement of links on search engines has the ability to steal competitors’ market share – and in turn to foreclose – that Microsoft uses this strategy. But Microsoft does this to penetrate the market and/or avoid market marginalisation. And there’s no cause for concern here: given Bing’s very low market share, the preferential placement of links at best yields minor foreclosure effects. You may call this procompetitive foreclosure. In contrast, Google has a paramount market position. Hence its conduct is likely to exert anticompetitive foreclosure effects.
On the link between the magnitude of dominance and the intensity of anticompetitive effects, see §20 of the Guidance paper:
“in general, the higher the percentage of total sales in the relevant market affected by the conduct, the longer its duration, and the more regularly it has been applied, the greater is the likely foreclosure effect”
And on the fact that not all foreclure is unlawful, see §22 of the CJEU ruling in Post Danmark:
“not every exclusionary effect is necessarily detrimental to competition“
Finally, the argument surmises that competition law should treat market players equally. But in this industry, Google
is seems dominant, Bing not. Those two firms are thus in distinct situations, and the argument again does not fly. It is indeed well settled that pursuant to Article 102 TFEU, dominant firms are subject to a “special responsibility” (whatever this means) possibly for the reason set out in my second point. Like it or not, competition law imposes higher constraints on dominant firms than on non-dominant firms.
The sole possible way to make sense of this argument boils down to a moral issue, best expressed in the maxim: “nemo auditur propriam turpitudinem allegans”. But it is well known that this argument has no traction in competition law, which has no moral content, a point forcefully made by Bork – a late pro-Google advocate – in his early Antitrust Paradox. And this, in any case, would not bar the Commission from taking over the investigation on its own motion.
Overall, by trying to counter argue that Bing also manipulates search results, Google is falling into the well-known Tu Quoque fallacy.
PS: the Lunch Talk was great. We heard two economists, Anne Perrot and Cedric Argenton, speaking very clearly to lawyers. We also watched a lawyer, Alfonso, morphing into a complete hi-tech geek. The introduction of his presentation was simply hilarious. I rarely laughed so much at a conference. The slides will appear on the blog very soon.
PS2: link to the above pic here.