Archive for the ‘The Friday Slot’ Category
This new edition of the Friday slot hosts Mr.
Regulation 1/2003 Wouter Wils, Hearing Officer at the European Commission. What impresses me the most about Wouter is his unparalleled ability to work as a full-time Commission official, meanwhile maintaining a cutting-edge academic production. When I mean cutting-edge, what I have in mind is his track record of well-documented, solid and sophisticated papers, in the spirit of US antitrust scholarship. Interestingly, another reason why I hold Wouter in great admiration is because he dares occasionally to depart from the Commission’s official party line. Finally, Wouter is one of those few lawyers who can comfortably navigate the troubled waters of competition economics. His latest piece on compliance programmes is an absolute must read.
1. “Oscar” of the best competition law book? And of the best non-competition-law book?
Best competition law book Anne-Lise Sibony’sLe juge et le raisonnement économique en droit de la concurrence.
2. “Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?
As human nature does not change, and our generation is not smarter than previous generations, there is no reason why the law should constantly be changing. Each generation rediscovers and reapplies the same basic principles.
I particularly like the opinions of Advocate-General Kokott, which explain very clearly the basic principles, for instance most recently in C-440/11 P Portielje and Gosselin.
3. Average working time/week?
I don’t count.
4. Why do you work in competition law? How did you first get into it?
Accidentally. When I arrived in the Commission’s Legal Service in 1994, I was put in the Competition team, because they needed a Dutch-speaker, and maybe also because of my dual education as economist and lawyer. If I had been asked what I wanted to do, I would have answered environmental law, because in my previous job as référendaire at the Court of Justice I had worked on very interesting cases under the Birds Directive.
5. Most interesting, intense or funny moment of your career?
The most interesting thing I did was being part of the ‘groupe de modernisation‘ ( – we still worked in French at that time – ), led by Gianfranco Rocca, which between 1997 and 2000 conceived and wrote the White Paper and the Commission’s legislative proposal for what became Regulation 1/2003.
For this new edition of the Friday slot, we are thrilled to publish our first interview with a member of the EU judicature, Mr. Marc van der Woude. On this blog, we hold Marc in great admiration. To us, he represents the ‘total’ competition lawyer. In his career, Marc has worked as a Commission official, as a member of the bar, as an academic and now as a Judge. In other words, Marc has seen the discipline from every possible angle. This gives him an unparalleled ability to ‘think’ competition issues with a rich and creative 360° perspective. I am sure most of you will notice this in reading his great interview. On top of this, Marc has made a very impressive appearance in the competition-Oscar winning movie, “The Raid”. Marc’s career is a true source of inspiration for us. We are so so grateful to him that he accepted to answer to our questions.
1. Why do you work in antitrust law? How did you first get into it?
My first experience of competition law was academic in nature. I was taught competition law for the first time by René Joliet at the College of Europe in 1983. The following year I worked as an assistant to Valentine Korah and Robert Kovar who remain brilliant academics approaching competition law in different ways. Valentine Korah tended to focus on the specific facts of the case whereas Robert Kovar had a broader approach focusing on the system as a whole. My first practical experience dates back to 1986 when I started to advise companies occasionally alongside my job as a lecturer of economic law at the University of Leiden. Ever since I joined DG COMP in 1987, competition law matters have been my daily bread and butter.
2. What do you like the most about your job?
I am very pleased at the General Court. The large majority of cases we have to deal with are extremely interesting and well presented. I also have the privilege to work on these cases with pleasant and competent colleagues. Exchanging ideas and arguments, agreeing and disagreeing, keep you sharp. In addition, it remains fascinating to see how people of 27 different nationalities and of various professional backgrounds work together in harmony.
3. What do you like the least about your job?
I have difficulties in finding negative aspects of my current job. However, there may be two things which I sometimes find irritating and inefficient: formalism and conservatism. Like many other lawyers, judges tend to have a disproportionate interest in form. Obviously, form is important, but the attention to form and detail should never distract from the substance of a case. Also, lawyers tend to be conservative and feel comforted by the existence of precedents. I am regularly confronted with arguments that do not have any other merit than referring to past practices or customs. This backward-looking mentality is not very helpful, if one wants to increase the Court’s productivity and the quality of its judgments.
4. Any favorite antitrust law books? And favorite non-antitrust law books?
To be frank, even if I sometimes enjoy reading law books, I rarely read them for leisure. The book on “antitrust and the bounds of power” which Giuliano Amato wrote in the nineties is an exception. He describes in a very simple and concise manner the problem of balancing private and public power in a liberal democracy. This question is at the core of all competition law discussions. Public intervention has a societal cost, but the absence of such intervention as well. Where do you put the cursor for intervention?
It is hard to say what my favorite non-law book is. It depends on my mood. There are three books which now come to my mind. The first is “Het grijze kind” (The grey child) by Theo Thijssen, a Dutch prewar author. It is about childhood endurance: there is no reason to get upset by unpleasant things that will not last. The second book is “Belle du Seigneur” by Albert Cohen. It is about a passionate love story between the secretary general of the League of Nations and the wife of one of his subordinates. The early parts of the book are compulsory reading for all those who work in international institutions. The same holds true for Tony Judt’s “Postwar”. His book is not a compilation of “national histories”, but offers a comprehensive approach of the phases and trends in our common European history.
For this twelfth edition of The Friday Slot Chillin’Competition is proud to bring to you an interview with a true antitrust guru: Einer Elhauge. Einer is the Petrie Professor of Law at Harvard Law School, where he teaches antitrust and many other subjects. He was actually one of the reasons why I applied for the Harvard LL.M (I got unlucky because he did not teach antitrust that year!). When someone asks me about the students and professors at HLS my usual response is that most people there are generally as smart/dumb as most other people, with the difference that they’ve had more opportunities in life. There are some exceptions to this and Einer is one of them: you can quickly tell that his mind works at a different pace…. Aside from teaching at Harvard he also testifies regularly as an expert in antitrust economics and is President of Legal Economics; he was Chairman of the Antitrust Advisory Committee to the 2008 Obama Campaign, and is currently on the 2012 ABA Antitrust Transition Task Force. His most recent book is Obamacare on Trial, and his past books include Global Antitrust Law and Economics; Global Competition Law and Economics; U.S. Antitrust Law and Economics; Statutory Default Rules; and Research Handbook on the Economics of Antitrust Law. He has also authored many other articles on antitrust and other topics.
For those wondering: the pic above shows Einer trying to move mountains ;) We leave you with his great replies:
Why do you work in antitrust law? How did you first get into it?
I loved antitrust from the first class I had with Phil Areeda. It just came so easily and naturally to me, and it involved a combination of creativity and analytical precision that I found very attractive from the get go. I knew immediately that I had found my calling. (I had already gone to and left medical school, so finding my calling did not initially come easily to me.)
What do you like the least about your job?
Grading exams. But then again, the rest of the job of being a law professor is something I would do for free, so it is not so bad if I take the view that my entire annual salary is for grading exams.
What do you like the most about your job?
Thinking about whatever I find most interesting. Really, that is an incredible luxury that I am thankful for every day.
Any favorite antitrust books? And favorite non-antitrust law books?
Favorite antitrust books. Bork’s The Antitrust Paradox: A lot was wrong in it, but he was also right in skewering many bad prior antitrust doctrines, and it is still the best written antitrust book ever. Carlton & Perloff, Modern Industrial Organization: A wonderfully clear exposition of the antitrust economics that every antitrust lawyer and professor should master.
Favorite non-antitrust law books. Ely’s Democracy and Distrust: Of course, that may be because it essentially used an antitrust theory to explain constitutional law. Black’s Law Dictionary: I have always been impressed by the incredible brief lucidity of this book; it explains an amazing amount of conceptual logic in few words on every legal topic under the sun. The Federalist Papers: A beautiful exposition of political thought, even though recent historical work suggests it might not have influenced the Constitutional adoption that much. Richard Posner, Economic Analysis of Law: Never has any human said so many insightful things about so many areas of law in just one book; he had the advantage of living at a time when there was lots of low-hanging fruit, but by God he picked them all clean. Bruce Ackerman, Social Justice in the Liberal State: It kept me up all night once because I found it so fascinating. David Strauss, The Living Constitution: An elegant explanation for many anomalies in constitutional law. John Rawls, A Theory of Justice: The philosopher most relevant to many legal issues, even though his mini-max is to me implausibly risk-averse. Bob Woodward, The Brethren: Just a lot of fun; the stories about Chief Justice Burger are worth the price alone. John Haar, A Civil Action: I could not put it down; who would have thought one could make civil tort litigation so gripping?
You teach comparative US-EU antitrust law. How big is the transatlantic divide?
I think it is actually quite exaggerated. Having co-written a Global Antitrust Casebook and taught Global Antitrust many times, I find that when you teach the cases on any particular topic side by side, you generally find that often there is a formally different way of expressing things, but a lot of substantive convergence. And when the substance diverges, I think it can often be explained by a divergence in remedies. The US courts repeatedly cite the overdeterrence threat from criminal penalties, private treble damages and class actions as a justification for narrowing US antitrust law. That same logic suggests that competition law should be broader where those remedies do not exist, like in the EC.
You were the chairman of the Antitrust Advisory Committee for the Obama campaign in 2008 (also of the Blogs and Op-Eds Committee and a member of the health policy group –congrats on this last one!). How has antitrust enforcement under the Obama administration performed in comparison with previous Administrations?
I think it is impossible for any outsider to tell for sure because performing well is not being more active or less active in the abstract. It is bringing antitrust cases when they should be brought and not bringing them when they should not. And to tell whether that is happening to a great or lesser extent than prior administrations, one would need the confidential case information on all the cases, which obviously we lack. The only ones who really know for sure are the agency officials, and they are not the most neutral judges of how well they have done.
Let’s do it like economists => assume that you could change 3 antitrust rules, principles, judgments or institutions. What would you do?
It’s been a while since we last had someone on the Friday Slot. For this new start, Bernard van de Walle de Ghelcke (Linklaters) has accepted to answer our questions. I met Bernard when I started as the bag-carrier at the GCLC, and we then worked together when he latter served as President. Bernard is a “gentleman” competition lawyer, a thorough expert of Regulation 1/2003 and on top of this someone who has relentlessly worked to foster debate on competition issues. Think of his role at the GCLC or at the head of the main Belgian competition gazette. He also has a strong track record of being able to communicate his passions to other. In addition to the many students he introduced to EU law at the College of Europe, his son is a young, enthusiastic antitrust lawyer at a Brussels law-firm.
1. “Oscar” of the best competition law book? And of the best non-competition law book?
I have always “Bellamy and Child” close to hand (and “the” Kerse for Antitrust procedure). However it is striking how increasingly textbooks seem to lose importance. One looks “life” at the case law as well as to recent specialized publications. As a practitioner our workload does not allow much academic reading unfortunately and we have to focus on the literature needed for a specific case. As regards competition law theory I often go back to the masterpiece “Politique de la Concurrence de la CEE” by the late Jacques A. Vandamme. It was early days of EC competition law but all the founding principles are there.
Outside competition law there are so many … I still consult De Page, Droit civil belge, Van Ryn & Heenen, Principes de droit commercial belge and W. Van Gerven’s “Algemeen deel” in Beginselen van Belgisch privaatrecht. As I am very interested in EU institutional law, K. Lenaerts’ “Constitutional Law of the European Union” is a must as well as the Wyatt and Dashwood “European Union law”.
2. “Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?
Best : the Court of Justice case law applying fundamental rights (Kadi) …. Worst : the same case law where it is timid or dismissive and fails to take all consequences.
The case law on parental liability is very troubling.
3. Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?
- I know it is not realistic and maybe against a trend but separate investigation, prosecution and decision for antitrust enforcement. This is the only decent system in an “état de droit”. Or why did we have Montesquieu for ?
- Force the Commission to also adopt positive decisions.
- Revisit the whole system and test it as to what competition law enforcement does for competitivity, industrial policy, employment and welfare.
“Friday Slot” interviews have proved to be quite successful. The interviews keep on receiving an insane number of visits, and for the most part we keep on receiving very positive feedback. However, we’re a bit concerned about the “straightjacket effect” that our questionnaire may give rise to. That’s why we need your help: Could you please let us know your suggestions on how we could make Friday Slot interviews better?
Also, following the suggestions of a couple of our previous guests who have “complained” about our comfortable position in asking but not answering questions, I’ve decided to invite the founding mother of this blog (I guess I’m the stepdad), Monsieur Nicolas Petit, for a “Friday Slot” interview (he will find our about this invitation when he reads it here). The idea is not to let him have a nice time replying to easy questions, so I need your help here too. Could you please send me any questions that you may have for Nicolas?
(Those who wish anonymous treatment when the questions are published can send me an email at firstname.lastname@example.org including the question/s and an alias).
And speaking of Nicolas, the competition law social event of the day will be held tonight in the form of a BBQ party at what will very soon be his former house. Since he’s leaving the place, the pic illustrating this post is from the office from which he’s been doing his writings -including this blog- during the past few years. No promising future awaits this desk (see here).
You all are familiar with leading cases in the EU competitition law canon such as Michelin II, Pre-Insulated pipes, Métropole, O2, Cementbow, IMS, Endesa, Aer Lingus (in the Ryanair merger case), Glaxo Smithkline, Lélos, Astra Zeneca, Wanadoo, Telia Sonera, KME, Teléfonica or Tomra. A good question for one of our quizzes would have been to ask what it is that all of these cases have in commmon. The right answer would be that in every single one of them one of the Legal Service’s agents representing the European Commission in Court was Eric Gippini-Fournier.
Today’s Friday Slot features an interview with him. Eric is one of my (I don’t use the default plural here because Nico and Eric have not yet properly met, although this will be fixed soon) favorite people in this small competition law world. After reading his answers to our questionnaire you will understand why. Above all, Eric is an incredibly nice, reasonable, gentle and frank guy. But he’s also a brilliant and intellectually honest jurist, a tough adversary, and -like Fernando Castillo de la Torre and other members of the Legal Service- he’s a living encyplopedia on competition law. Eric is not contaminated or constrained by some of the oddities that at times surround the profit-making side of this business, and this often gives his views an added interest. On top of all of the above, we also share a taste for late Sunday lunch at Roi du Poulet… We are very thankful to him for having accepted our invitation to appear here.
“Oscar” of the best antitrust law book? Non-antitrust book?
The best antitrust books are slow food, the result of a long process by one or two cooks, not more. Areeda/Turner, Bork’s “Paradox” and Waelbroek/Frignani are great examples. Among recent books, I would nominate Luis Ortiz Blanco’s “Market Power in EU competition Law”.
Non-antitrust books? “Belle du Seigneur” by Albert Cohen comes to mind. Lately I have enjoyed Art Spiegelman’s “Maus“, and two great biographies, of Benjamin Franklin and of Franklin D. Roosevelt (both by Henry Brands).
“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?
My nominations in the first category will not necessarily please the blog hosts. They go to the ECtHR (Menarini Diagnostics), the ECJ (TeliaSonera, KME Germany and Tomra), and the EFTA Court (Posten Norge). On the “bad” side, I have misgivings –but only that, misgivings– about the hands-off approach to reverse payments, most recently by the court of appeals for the 11th circuit in Watson Pharmaceuticals.
Let’s do it like economists => assume that you could change rules, principles, judgments, institutions in the current EU antitrust system. What would you do?
I am not fond of the law on exploitative abuses, in particular excessive pricing. In fact I am not sure that prosecuting excessive pricing –essentially a consumer protection issue– fits with the overall design of EU antitrust, with its focus on protecting the competitive process.
I would revamp evidence rules before the EU courts, for example re-introduce the old ECSC rule that, in case of appeal against a Commission decision, the entire case file is automatically transmitted to the General Court. Right now the court file includes only evidence provided by the parties, which gives an incomplete view of a case.
Average working time/week?
Probably too much. I don’t count the hours but it should be possible to do the math. At any given time I have 40 or 50 cases pending before the EU courts and in a typical year I present oral argument in eight to twelve hearings, sometimes more. I should say that litigation is less than half of my workload.
Why do you work in antitrust law? How did you first get into it?
My home university inSpain has a tradition in IP and competition law. By law school graduation, the Merger Regulation had just been adopted, and it was the subject of my thesis. I then studied EU and U.S. antitrust at Bruges and Berkeley, with Robert Kovar and Einer Elhauge. These great teachers, and others like Val Korah and Louis Vogel inspired me. I also did some basic microeconomics coursework at LSE when I was a teaching assistant in Bruges and we were about to introduce a microeconomics course for lawyers.
All this was twenty years ago. What keeps me interested is that each antitrust case requires me to study and understand a different technical and economic reality: how Tetra Paks or CPUs are made, the intricacies of copyright management societies or the details of pharmaceutical pricing in Spain.
Most interesting, intense or funny moment of your career?
Around 1998 I had a hectic, but very interesting time with sports-related antitrust issues like FIA/Formula One and the FIFA player transfer regulations. I have had intense hearings over the years, including GlaxoSmithKline, Telefónica, and many others.
Funny moments came especially in non-antitrust cases. In a case involving regulatory obstacles to selling nutritional supplements, we arranged to meet with the complainant’s board of directors. Four huge bodybuilders showed up, each 150 Kg of muscle and built like trucks! We immediately agreed with everything they said and promised swift action.
Your role model (if any) in the antitrust community?