Chillin'Competition

It had been a while since our last Friday Slot interview, and many of you had requested its return. In order to revive this section of the blog we decided to invite the person who is these days the most sought after interviewee in EU competition law, Commissioner Margrethe Vestager, who very kindly accepted our invitation. We are honoured and grateful for her availability to be interviewed for Chillin’Competition (and for the increase in visits that this interview will bring to our site). 

1. How are you enjoying your new job so far? And Brussels?

My job is challenging and demanding – and I like it very much. I have a profound respect for the consequences of the decisions the Commission take – so I take it seriously. And I enjoy working in different languages, in an international environment and with very skilled people. Brussels is also nice. I enjoy the walking to the office and to get to know the city again. More than 20 years ago I spent 6 month here as a stagiare – so the outlines of the city were familiar although much has changed since then.

2. What would you say are the best and worst things about your job?

… many! The work in itself make sense: The Commission has a big challenge to contribute to a dynamic and innovative Europe. And on the everyday basis that vision can be boiled down to analysis, dialog, listening, deciding – and that in a setting of very skilled people.

3. Many consultants make a living drafting background memos on your background, personality, tastes, etc. They are probably reading this; what would you tell them?

I always strive to be present as a person in whatever situation I am in – private or professional. When you are responsible for decisions that influence many people you have to be thorough and you have to understand the perspectives of a given matter so I take my job seriously. I often request more information, food for thought and conversations about how things should develop. In the end, as a minister or as a Commissioner you have to give directions and you often have the final say. But that should never prevent you from listening.

I find it important to know other peoples’ opinions just as I find it important for them to know mine. I’d rather disagree with someone knowing what they represent.

4. What do you think about competition lawyers so far? In full frankness…

That they come in just as many varieties as everyone else.

5. How did you “train” in competition matters prior to your arrival in office? Was reading Chillin’Competition enough? 

It took a lot of reading and introduction to the area through preparatory meetings. Especially up to the hearing. The composition of my cabinet and the people I work with every day have also participated to the build-up of knowledge.

6. What is your favorite book?

I enjoy to read and think it is difficult to pin point “the one and only”. However, one of the books that I found very inspiring is The Alexandria Quartet, which is actually three books. I am fascinated by the author’s description of different perspectives of the same set of events, with the same people involved. And right now I read “Looking at photographs” by John Szarkowski – 100 photographs from the Museum of Modern art. It is about the same – how seeing and the change in perspective can change everything.

7. And favorite music?

I listen to a large variety of different types of music and I love to sing along which may be of mixed pleasure of my surroundings! When I run I mostly listen to the Danish singer Tina Dickow. It is probably not the most typical for running but I like the almost meditative mood in her music.

8. Favorite movies?

I love to watch television. All types of series and movies. I have intensely followed the Danish version of The Great British Bake Off and do even re-watch favorite episodes J. Other than that I enjoy movies of all different types. Lastly I went to the cinema to watch the Polish/Danish drama Ida.  But the movies I have seen the most are the “Die Hard” movies. I always look forward to when John McClane says Yippee ki-yay.

9. We would have asked you about favorite food, but following your confirmation hearings at the European Parliament we all know about your taste for chocolate; how’s your chocolate market investigation evolving?

You are right about my strong taste for chocolate! And Brussels is a good place to be for that. I will indeed now investigate a chocolate merger: the acquisition by Cargill of Archer Daniels Midland’s industrial chocolate activities that was notified to us mid-January.

10. Average working time/week?

I do not count my hours of work but of course they add up.

11. And what do you like to do when you’re not working?

I spend time with family and friends. Love to cook, plan and prepare a meal – the process of the preparation: maybe consult cook books, get inspired in the shops and then come back home and begin the cooking and look forward to when friends come over later. I read books, knit, run and, as already mentioned, I am very fond of watching television.

12. Why did you first decide to get into politics?

It wasn’t really a conscious choice. It started at school when I joined as a student council representative on order to us go get a fruit booth at school. Then one thing took the other and here I am.

13. Most interesting, intense or funny moment of your career?

Cannot chose – there are many.

14. What career/personal achievement are you most proud of?

I would not say proud but touched. Lastly that was when I went to Ikea to shop some days after the Hearing in October. The cashier said to me: “I saw you on TV Thursday – you did really well. I am proud of you”. She probably has a million different things in her life to take care of and still she had that extra to say that to me – it really touched me!

15. Who do you admire?

Madeleine Albright and the personal responsibility she took as Secretary of State during the Balkan Wars in the 90’ies.

16. Your favorite motto?

At Christiansborg Castle where the Danish Parliament resides there are friezes with different sayings. One of them says: Lev i dit værk mens det øves and translates more or less into “Live your life whilst you practice it”. To me it is a good reminder that we should look ahead but that it is equally important to remember to be present right now. To participate in your own life here and now.

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

I visit a lot of different news sites – mostly a mixture of English and Danish ones. And I do a lot of shopping online. It is very practical because online the shops are always open!

And now three harder ones:

18. Your predecessor was not a man afraid of commitment; many observers have nevertheless criticized the use of Article 9 to secure concessions in unclear cases or in cases where procedural efficiencies haven’t been achieved; what is your stance on the pros and cons of commitment decisions?

Commitment decisions are one powerful tool in the Commission’s enforcement toolbox, a tool that can swiftly restore competitive conditions on the market, while allowing for procedural efficiencies. However, it is not the only powerful tool in the hands of the Commission. Prohibition decisions have a strong deterrent effect and precedent-setting value. As competition Commissioner, I will use any of these tools, when I consider they’re appropriate to solve the case at hand.

19. In your view, should the Commission limit itself to applying the law or should it also try to develop and advance it?

Our main task is to enforce the competition rules on a case-by-case basis and to define and implement the orientation of the EU competition policy. The Court of Justice has been very clear on this. In fulfilling these duties we can only act within the boundaries of the law. If the Commission wants to advance the law to the extent of changing it, for example in order to fill a clear enforcement gap, it has to make a proposal for legislation.

However, new types of anticompetitive behavior or unusual market circumstances may require an assessment that has not been made before and for which there are no precedents in case law. In these situations the Commission still has the duty to take action if competition in the internal market is endangered. And of course we will set priorities for the enforcement activity and possibly also evolvement of the law.

For instance: not long ago the Commission had to tackle the misuse of standard essential patents – a novel phenomenon. On this occasion, the Commission made a new type of analysis and advanced its thinking while applying existing case law under Article 102. Any novel reasoning in Commission decisions is of course subject to the full and careful scrutiny of our Union Courts.

20. How much law, how much economics and how much politics should there be in competition law enforcement?

Competition enforcement should be based on sound legal and economic principles which ensure a level playing field, give legal certainty to businesses and of course make good sense from an economic standpoint. When it comes to concrete cases, impartiality, neutrality and fairness are extremely important.  All companies should not only abide by the same rules but also be treated equally. Competition cases should not be politicized, nor should political considerations obstruct the aim of competition policy which is to ensure fair competition, not to protect individual companies. I also believe that competition policy should not be used to pursue policy goals that can be better addressed with other legal and policy instruments.

That being said, competition enforcement remains crucial for attaining our internal market objective. It also makes European businesses stronger and more competitive and, in the end, competitive businesses in functioning markets will bring growth and jobs.

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.

Best non-competition-law book  Marcel Proust‘s A la recherche du temps perdu.

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.

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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.

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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?

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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.

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“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 alfonso.lamadrid@garrigues.com 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).