Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for the ‘Our Publications’ Category

The definitive article on two-sided markets, by me

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(1) Economic theories on multi-sided markets are now well established and, in fact, earned Prof. Tirole a Nobel Prize earlier this year; (2) Some of the most prominent ongoing cases, including the two concerning Google, go to the heart of antitrust issues in multi-sided settings; (3) In addition, the EU has been said to intend to regulate “platforms” (see here for a piece including some leaked documents). Not that anyone seems to know what a “platform” is exactly (since when is ignorance an impediment to introduce regulation?), but the Commission’s leaked documents make it clear “multi-sidedness” is what the Commission (or at least Commissioner Oettinger, a champion of smart regulation in the digital single market –like this?-) has in mind (the docs also refer to specific search engines, social networks, application stores and internet payment gateways as the quintessential examples of platforms in alleged need of regulation).

In my view, in spite of all these developments we lawyers have not yet reflected enough on how the application of competition law should be refined in this context.

As you may remember, I gave my views on the subject at the Swedish Competition Authority’s “Pros and Cons conference” (French speakers may think that I was the “con” among the pros, which is probably right….) (the slides are available here).

My speech at this event has now been beefed up and features in the latest issue of the Competition Law Journal, published by Jordan Publishing, at [2015] Comp Law 64; it is available here:

The Double Duality of Two Sided Markets_CLJ_Lamadrid

 [The title of the post was perhaps a bit of an overstatement, but since Chillin’Competition is not (yet) a regulated platform, I thought I could use some self-favouring ;) ]

And on 4 June the European Commission has (at the behest of the UK’s CMA) very kindly invited me to talk about these issues in Uppsala at the annual gathering of the European Association of Competition Law Judges; it should be fun. The program for that event is available here: AECLJ Uppsala prov programme

Written by Alfonso Lamadrid

5 May 2015 at 3:46 pm

Much more on the Intel Judgment

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Writing about the Intel Judgment seems to have become one of the favorite hobbies of some of our leading competition law experts.

One of the most downloaded and talked-about competition law articles of the year was Wouter Wils‘ one on “The Judgment of the EU General Court in Intel and the So-Called “More Economic Approach” to Abuse of Dominance“, which we discussed and first announced here.

Wouter’s piece was followed by other equally interesting ones, like Richard Whish‘s (see here), and like my current co-blogger’s, which also received considerable attention (see here for Pablo Ibañez‘s “Intel and Article 102 TFEU Case Law: Making Sense of a Perpetual Controversy”  [Wouter’s and Pablo’s articles are by the way both nominated for the Antitrust Writing Awards (see the “Dominance” category here); for some reason Pablo is also co-nominated in the business category for two other pieces I wrote myself (I now understand why he likes to theorize about free riding… ;) ]

The latest addition to this list of worthy reading is a paper just made available by our friend and founder of this blog, Nicolas Petit. His piece, titled, Intel, Leveraging Rebates and the Goals of Article 102 TFEU discusses the positive law standard  applicable to exclusivity rebates following Intel. He finds that the GC’s Judgment sets a modified per se prohibition rule for exclusivity rebates, and endorses the theory of anticompetitive leveraging that formed the core of the Commission’s Guidance Paper on Article 102 TFEU. Nicolas also discusses the purposivist debate that has arisen in the scholarship, and whether it is right that the General Court endorsed a non-welfarist approach to Article 102 TFEU. In his view, this cannot be right, for non welfarist goals cannot be acclimated in moden competition law. Nicolas calls for clear dicta from the ECJ along the lines of Post Danmark.

Those interested in knowing even more (or, rather, in having even more mixed views) about the Intel case should (1) have attended Nick Banasevic’s (who was Case Manager in Intel) excellent talk about the Judgment last Friday in Madrid; and (2) take a look at a new competition law journal (Competition Law & Policy Debate) which, in its first number, features a bunch of Intel-related articles authored by a very impressive line-up of authors (the same issue includes as well an interesting piece on the Google case by the former President of the CFI, Bo Vesterdorf, also available in SSRN).

P.S. Following the publication of this post I have received another piece on the Judgment. This one is authored by Luc Peeperkorn -a European Commission official and one of the main proponents of the effects-based approach, currently on a one-year leave of absence at NYU-, and its title is self-explanatory: “Why the General Court is wrong in Intel and what the Court of Justice can do to rebalance the assessment of rebates“. The piece is also interesting, and unusual, for it is not every day that a Commission official criticizes (although in an academic capacity) a Judgment that the Institution won in first instance and is defending on appeal.

Written by Alfonso Lamadrid

23 February 2015 at 5:16 pm

Non-working papers (on two-sided markets, object/effect, cartel evidence and Google)

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writingI recently had to devote most of my non-billable work to finishing a few publications (the fact that after a few missed deadlines I was almost under death threat from editors also played a role) and preparing some courses. As if there weren’t better things to do with one’s time…

Anyway, since I did the work, I thought that it could perhaps be useful to post it or refer to it here, both to justify myself and in case any of you might find them interesting or have comments. These “non-working” papers include:

– A paper on “The Double Duality of Two-Sided Markets” which, to a large extent, is a beefed up version of my speech (the ppp is available here) at the Swedish Competition Authority’s Pros and Cons Conference back in November. The editors of Competition Law Journal have kindly offered to publish it, so it will appear there soon. The paper posits that competition law enforcement regarding multi-sided platforms may have not always accounted for the ambiguity of business practices carried out in these settings and attempts to identify the causes at the root of this problem and to propose some solutions. In essence, my take is that multi-sided platforms raise old questions but with renewed intensity, and that this must force us to go back to basics and recall some general principles that we should never lose sight of.

– A presentation on the Cartes Bancaires Judgment (here: Some additional reflections on Cartes Bancaires_Lamadrid ). It’s titled “some additional reflections” because it followed previous interventions at a seminar on the part of Javier Ruiz Calzado (Latham&Watkins; his very good ppp is also available here: Cartes Bancaires_Ruiz Calzado ) and Nicholas Khan, from the European Commission’s Legal Service. It was a privilege to share the panel with them.

– An absurdly lengthy not so succint paper I’ve co-written with my colleague Ana Balcells on cartel evidence in Spain: La prueba de los cárteles en España (Lamadrid_Balcells), forthcoming in JM Beneyto y J Maillo (Dirs): La lucha contra los cárteles en España, Aranzadi, 2015.

– Also, a few days ago the founder of this blog, Nicolas Petit, asked me (with a most kind anticipation of less than 24 hours…) to conduct a case study on the Google investigation at the Brussels School of Competition. It was a very interesting exercise. I only directed the debate asking questions and linking issues together and it was the students who brilliantly taught themselves and arrived to their own conclusions (I’m being nice to them because I told them that suscribing to the blog is a prerequisite for passing, so I assume they’re reading this). The legal issues underpinning the case (which have not always received the necessary attention) are very well-suited to reflect about some basic concepts of Article 102. In fact, Pablo also did this with his students at LSE a few days ago. Just in case any of you is interested in conducting a similar exercise, here is the (very hastily drafted) list of questions I used: Google Case study – BSC_Lamadrid.

A review of recent EU competition case-law

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Last week General Court Judge Marc van der Woude (click here to read his Friday Slot interview with us) and Nicolas Petit did a joint presentation on recent EU competition case-law at the Vereniging voor Mededingingsrecht (Dutch Competition Law Association).

The must-read slides are available here: Slides -17 December – Van der Woude and Petit

(A teaser: the slided identify an apparent misquote in the Cartes Bancaires Judgment…).

Written by Alfonso Lamadrid

22 December 2014 at 6:27 pm

The Double Duality of Two-Sided Markets

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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):

Lamadrid_The Double Duality of Two Sided Markets

 

Written by Alfonso Lamadrid

28 November 2014 at 11:26 am

More on Android

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On Wednesday I very much enjoyed participating in an interesting panel on the Android investigation with Kristina Nordlander, Trevor Soames and Neil Dryden. We hold different views about it (I’ve motivated my skepticism here before) but it’s always a pleasure to debate with smart lawyers.

Our presentations are available here:

Lamadrid_Android (thanks to Miguel Angel Bolsa for the help!)

K. Nordlander – Android and Google Play

Trevor Soames_Android (this one contains a few references to this blog)

In my next conference appearance (at the Swedish Competition Authority’s Pros and Cons conference on Two-sided markets on 28 November; see here for the program and registration info) I’ll be accompanied by another reputed and esteemed jurist who also happened to found this blog.

Written by Alfonso Lamadrid

17 October 2014 at 11:10 am

Do you want to work at DG Competition? + other ads

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Although apparently some some readers are of the opinion that I tend to be too favorable to the Commission in my comments (a capital sin for a lawyer in this town), that hasn’t been the general rule on this blog. Among other things, we have in the past criticized DG Comp’s HR policy, which often makes experienced people move from the posts where they can do best and, especially, the recruiting procedures which in recent years may not have always worked ideally.

Fortunately someone inside has realized about this and the Commission has now announced a new special competition for competition specialists (like many of you, we also received an email straight from Comp in our professional email addresses, the EDPS should perhaps look into that :)).

According to the email, “the European Commission is looking for highly-talented experts, with a strong academic background and at least six years’ professional experience in the following domains: Competition Law, Corporate Finance, Financial economics, Industrial economics and Macro-economics”. Those selected would join the Commission as AD 7 agents (for info on what this means –yes, in terms of pay too- click here) (speaking of which, I recommend a read of this piece from The Economist: Are Eurocrats in it for the money?).

DG Comp will be holding an information session on 22 October from 12:45 to 14 at the Madou Tower’s Auditorium (convenient time so no one in your office realizes about your absence, unless you all go there that is). You can register (before 20 October) via email COMP-CPI-MAIL@ec.europa.eu (your registration needs to contain your full details (name, date of birth, contact details) including your ID card number). The closing date for applications is 25 November 2014.

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Now that he’s not incurring the opportunity cost of writing this blog, Monsieur le Prof. Nicolas Petit will be an even more prolific paper-writer. His latest publications are available here: Optimal Enforcement of Competition Policy: The Commitments Procedure Under Uncertainty   and Price Squeezes with Positive Margins in EU Competition Law: Economic and Legal Anatomy of a Zombie

ERA has put together a great line-up of speakers for a workshop on Restrictions by Object after Cartes Bancaires and the Commission’s initiatives. For more info, click here.

Written by Alfonso Lamadrid

16 October 2014 at 4:28 pm

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