Chillin'Competition

For this fifth edition of the Friday Slot, Chillin’Competition has interviewed a true master competition lawyer, Jean-François Bellis (Van Bael & Bellis, Brussels). The ITW tells it all, Jean-François is a person with many facets, i.e. litigator, entrepreneur, academic, teacher, etc. And the thing is, on all those fronts, he just stands out… It is a great honour for us to publish today his stimulating, inspirational interview.

“Oscar” of the best competition law book? Non-competition book?

Without question, the Van Bael & Bellis competition law book, now in its fifth edition, should win the prize! Seriously now, in my view, the most influential competition law book ever written is Robert Bork, “The Antitrust Paradox”, which so powerfully contributed to establishing the current accepted wisdom that the aim of competition law is to maximize consumer welfare. It is difficult to find a competition law book that has had as significant an effect on the practice of antitrust/competition law.

On the non-competition side, there is an embarrassment of riches. I have great respect for Orwell who, among other things, deserves the Oscar for the best opening line (“The idea really came to me the day I got my new false teeth” in “Coming up for Air”). But, as a lawyer, my vote will go to “The Trial” by Kafka. Quite fittingly, this book was one of the highlights of the course on literature in the first year of my law studies at the University of Brussels. Since I began practicing competition law, I had the impression of performing in it more than once.

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development? 

The KME judgment issued by the Court of Justice on 8 December 2011 may turn out to be a landmark case in that it spells out the concept of full review in competition cases. To some extent, it mirrors the Strasbourg Court Menarini judgment issued on 27 September 2011 which affirmed the consistency with Article 6 of the Convention of administrative enforcement procedures provided that they are subject to full review by an independent court.

In terms of worst case-law development, I am concerned that the Court of Justice’s revisiting of parent liability issues last year may be generating uncertainty, and fear that this could potentially have unintended consequences in other areas of EU competition law (such as the possibility that Article 101 TFEU may be applied to intra-enterprise agreements between subsidiaries of the same group).

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For this fourth edition of the Friday Slot, Prof. Richard Whish has taken the time to address our questions. As everyone knows, Prof. Whish is the author of the ultimate EU competition book, a book with a big B which is a model of clarity and accuracy. Amongst other things, in this  ITW, Prof. Whish takes distance with the dominant view on Tomra and TeliaSonera and alludes to encounters with mutant economists. Thanks to him for accepting to appear in the Friday Slot. A great honour for chillin’competition.

“Oscar” of the best competition law book?  And of the best non-competition law book?

Well, obviously I cannot say Whish on Competition Law! I greatly admire Oke Odudu’s The Boundaries of EC Competition Law for incisive and original thinking and for in-depth research. On procedure there is nothing to match the series of essays written by Wouters Wils and published in a series of books since 2002.  As for other books, where to start! I suppose if it had to be just one I would go for George Eliot’s Middlemarch for a view of all things English (good and bad). I am not aware of a finer character in literature than Dorothea Brooke.

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

I very much liked the judgment of the Court of Justice in TeliaSonera, a view that is not widely shared, it would seem. To suggest that a margin squeeze cannot be an abuse in the absence of a duty to deal, to my mind, would emasculate Article 102 and to limit it to the control of monopoly rather than dominance.

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 wish that we could start over again on refusal to supply and on rebates. I am not a critical as some commentators about the current law in these areas, but I do think that it is difficult to explain quite how we got to where we now are. I have difficulties with Commercial Solvents, which is where the law on refusal to deal started: to what extent was the Court really concerned that Commercial Solvents had discontinued a customer who had become dependent upon it? The national laws on economic dependency do not, to my mind, qualify as ‘competition’ laws, but their existence has percolated into the competition rules.  As for rebates, some of the judgments contain statements that suggest per se illegality, which cannot be correct. Tomra and Intel will be very important judgments on this: to what extent, I wonder, will the Commission’s Guidance document have an influence on the Courts dealing with those appeals?

A different point is that I think that changes are needed at the General Court as to the way that it conducts its review of Commission decisions: I am not thinking so much of the intensity of the review as the actual procedure.

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For this third edition of the Friday Slot, Antoine Winckler (Cleary Gottlieb, Brussels) has taken a shot at our questions. I met Antoine five years ago at a conference on “Non-competition concerns under the EUMR”. He made a great impression and since then, with my competition friends, we refer to him as the “Tribun”. A full biography of Antoine can be found here.  I also know for a fact that Antoine reads our blog regularly.  It is a great honor that he took the time to answer to our questions.

“Oscar” of the best competition law book?  And of the best non-competition law book?

Judge Bork’s  Antitrust Paradox

Boccacio’s Decamerone

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

Worst : CJEU, C 439/09, Pierre Fabre Dermo-Cosmétique SAS v Président de l’Autorité de la concurrence and Ministre de l’Économie, de l’Industrie et de l’Emploi (another move away from the effects theory)

Best:  Advocate General Sharpston’s Opinion in CJEU, C-389/10 P, KME v. Commission

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 would transform DG COMP into an EU Prosecutor and give the General Court the power to make all antitrust decisions (but only after making sure judges have all followed economics 1.01).

Average working time/week?

When does work really stop?

Why do you work in competition law? How did you first get into it?

You get to work with non-lawyers a lot.

I really wanted to work in Brussels – just kidding.

Most interesting, intense or funny moment of your career?

Watching Judge Vesterdorf being shown a streamed James Bond movie (James Bond in his Aston Martin) during the Microsoft v Commission hearing.

Hearing my learned colleague/partner/dear friend Mario Siragusa and his opponent Antonino Abate from the Legal Service – both pure Sicilians – plead a State-aid case in re-invented French.

Your role model (if any) in the competition community? And outside of it?

Don Holley and Mario Siragusa (my mentors at Cleary)

Winston Churchill

What do you like the least about your job?

Difficult clients

What do you like the most about your job?

Difficult clients

What you like the most about economics in competition law?

Finding an economist coming up with the right answer

What you like the least about economics in competition law?

Economists who repeat what lawyers say

What career/personal achievement are you most proud of?

Having had fun (most of time) working

A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?

Teaching philosophy/literature/history or riding horses

Besides being a “competition geek” (sorry for this one, but we all are), what are your hobbies?

Philosophy and horses

Favorite movies?

Gilda, The Night of the Iguana, Hitchcock and Marx Brothers generally

Favorite music style in general?

Opera

Your favorite motto?

Work is the curse of the drinking classes (Oscar Wilde)

Websites that you visit the most (besides Chillin’Competition)?

Google of course

A piece of advice for junior competition professionals?

Have fun

For this second edition of the Friday Slot, Bill Kovacic (George Washington University, former FTC Commissioner and Chairman)  has  kindly accepted to answer to our questions. I suppose Bill needs no further introduction to most of our readers. Yet, for those of you who have never seen Bill “live”, I have to say he belongs to the top five speakers on the antitrust conference circuit. A biography is attached at the end of this post. Thanks again to him for taking the time to answer our questions (with, as you will see, a great sense of humour and humility).

Question 1: “Oscar” of the best antitrust law book?  And of the best non-antitrust law book?

Here are two books which, owing to their age, may not be well known to new generations of competition economists and lawyers.  For the best antitrust law book, read Ellis Hawley, The New Deal and the Problem of Monopoly (Princeton University Press 1966).  Hawley provides essential background on the US antitrust system, and his discussion of antitrust in the 1930s has powerful relevance today.  For the best non-antitrust law book, read Marver Bernstein, Regulating Business by Independent Commission (Princeton University Press 1955).  Bernstein studies US experience with regulatory commissions, but his assessment has universal application.  Most honorable mention for category two: Richard Harris & Sidney Milkis, The Politics of Regulatory Change – A Tale of Two Agencies (Oxford University Press, 2d Edition, 1996).  Every newly appointed competition agency leader should read this book before the job begins.

Question 2: “Oscar” of the best case-law development in the past 5 years? “Oscar” of the worst case-law development?

My nominees for best and worst are FTC cases I worked on.  The envelope with my answers can be opened five years hence.

Question 3: Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current US antitrust system. What would you do?

Three institutional changes to the US system:

First, reform the criteria that academics, government officials, journalists, and practitioners frequently use to grade competition agencies.  Abandon performance measures that equate activity (cases filed, fines imposed, days in prison) with accomplishment.  Define agency effectiveness by the economic outcomes achieved by litigation and non-litigation policy tools.  When a competition agency official says “We’ve been very busy!,” respond “Have you been very effective?”

Second, bolster efforts by competition agencies and external researchers to measure the economic effects of antitrust policy.   Evaluating outcomes is a difficult, necessary task.   Distrust assertions that competition law is valuable economic policy, but there is no way to tell if it works.

Third, increase policy integration between the two federal antitrust agencies and among the federal authorities and the states.  Create a US equivalent of the European Competition Network.   Greater policy coherence at home is ever more important to influence norms abroad.

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At Chillin’Competition, we have decide to emulate an unpopular practice of DG COMP. From now onwards, we will be launching Friday requests for informations (“RFIs”).

In line with the spirit of this blog, our RFIs will be a bit different from those of DG COMP. Our targets will be big names in the antitrust world who, in addition, are interesting people with a good sense of humor. Just like this blog, our questions will be partly professional and partly personal.

To start this new venture – in principle, the Friday slot will be opened twice a month – we have sent our first RFI to no other antitrust superstar than Mr. Ian Forrester (White and Case, full biography available at the end at this post)!

And guess what: Ian has accepted to address our questions very swiftly, and has provided remarkable, insightful, thought-provoking answers. Again, we are immensely grateful to Ian for the time he took to answers our questions. In exchange for his time, we offered him to baptise this new series of posts, and he offered the title “The Friday Slot” that appears on top of this post.

Question 1: “Oscar” of the best competition law book?  And of the best non-competition law book?

The shortest and simplest book is by David Edward and Bob Lane: “European Community Law: An Introduction”.  Competition law is not complex, though it can be made sophisticated.  Proper analysis of the realities of the marketplace is where everything should start.

The items of competition law literature which I most regularly use are the reviews of competition law in the Oxford Yearbook of European Law since the first volume in 1981. Francis Jacobs was the first editor and for about fifteen years Chris Norall and I squeezed the juice from every development. We tried to avoid accepting the official propaganda and to enjoy advancing our particular theories. Then the reviews went through a period of being too comprehensive and too lengthily thorough, but now we are back on a good rhythm. The reviews are lively and opinionated, and you can disagree with them, but they ought not to be boring. Writing them has been hugely instructive for my colleagues (jacquelyn Anthony , Makis and a platoon of other talents) and me, a great way of learning, digesting and explaining. I often use the OYEL review as a way of reminding myself of what was important in a case. Sometimes that matches conventional wisdom and sometimes it doesn’t.

Question 2: “Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

The Oscar to the best case-law development could go to the Swiss watch parts case, where the Court overturned a Commission refusal of a complaint and took us back to simpler times when small folk could look to the protection of the competition rules. It is very rare for such challenges to succeed and the Court did a really careful job in writing its judgement.

Question 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?

Criminal liability; proof beyond a reasonable doubt; and judicial review as ferocious as the House of Lords.

Question 4: Average working time/week?

Excessive!  I travel a lot, and when I am away the e-mails multiply, as do the messages from editors wanting manuscripts.  But I am not complaining.  It is fun to do interesting work in interesting places.

Question 5: Why do you work in competition law? How did you first get into it?

By accident.  I was a customs specialist, then made a complaint for a friend’s uncle against a whisky producer (differential pricing): Bulloch/Distillers Co. Ltd.  That was my first case in Luxembourg.  Lord Bethell was the next, about the rights of complainants.  Others followed.  I never studied competition law, or indeed EEC law, at university, an educational void which is unlikely to be remedied. Read the rest of this entry »