Archive for the ‘Uncategorized’ Category
Next Friday we’ll be holding the annual seminar on Recent developments in abuse of dominance and merger control within the framework of the course that Luis Ortiz and myself direct in Madrid. Starting at 16.00, this seminar will feature:
Cecilio Madero (Deputy Director General, DG Comp): Introduction and overview.
Nicholas Banasevic (Head of Unit, DG Comp): Competition law and Intellectual Property: Recent developments.
UPDATE. The intervention on Recent developments in merger control has been cancelled.
Milan Kristof (Référendaire at the European Court of Justice): Recent developments in the case law of EU Courts.
For more info you can contact the course’s secretary at firstname.lastname@example.org or drop me a line at email@example.com (I will be travelling for the next 30 hours (including 3 very tedious transfers…) so don’t expect a rapid response from me).
That the Chicago School has had a profound and lasting impact on competition law analysis is well-known. That Milton Friedman, the intellectual leader of the most legendary of Economics Departments, played a (minor) role in the creation of an EU competition law system, is probably ignored by many of our readers.
As they explain in their memoirs, Milton and Rose Friedman spent some months in Paris in 1950, working for the Marshall Plan agency. Milton’s main task during his time in France was to analyse the Schuman Plan. He expressed concern that the project would lead to the ‘substitution of a single super-monopoly for the present collection of monopolies’ and that the ‘fine words about “competition” and “single market” have been interpreted to mean centrally directed and controlled industries’.
This passage is useful to put things in perspective. Many contemporary commentators tend to see the ordoliberals and the Chicago School as two extremes in a continuum. Against the widespread view, Milton Friedman’s account suggests instead that he shared with the ordoliberals of the time a concern with central-planning and with the cartelisation of key industries. Both saw competition as necessary for the emergence of a genuinely free and democratic society. And the rest is after all just details
Vote for me friends: here.
And three questions/remarks:
1. Why wasn’t Alfonso’s great piece on “Antitrust and the policital center” selected in the Business section? This was the single most read piece in CPI last year.
2. Will the prize be effectively awarded this year? I was one of the laureates two years ago, but I am still awaiting my invitation to GWU. It goes without saying that if I win again this year, I am happy to give two lectures at GWU on the same trip.
3. Why has the voting count disappeared this year? 2 years ago, you could see the number of votes attracted by papers. This year not.
In Bruges, on 17 January, the GCLC will celebrate its 10 years with a conference on preliminary rulings in EU competition law.
For more, see here.
[Thanks to Alfonso and Nicolas for allowing me to post yet more thoughts on the Google investigation]
We have now entered the fourth year of the investigation into Google’s practices (and this without even a statement of objections being issued). The latest statements by the Commissioner suggest that the final decision will most probably not be issued any time soon. Because the proceedings are taking (objectively speaking) so long, one is tempted to think that, were Google’s practices truly exclusionary, negative effects in the marketplace would have already materialised. Arguably, the time elapsed since the opening of the investigation is long enough to establish whether the initial concerns were justified.
As a complete outsider, I do not have the means to know whether action by the Commission is based on figures suggesting the likely exclusion of rival services. But I know that I make compulsive use of Amazon (the immense success of which is no secret to anyone), that I regularly check reviews on Tripadvisor (which seems to be a healthy business with a growing number of unique visitors) and that, every now and then, I use Expedia (which is facing increased competition, including from Tripadvisor). As everybody else, I read newspapers mostly online, and I notice that the above and other search-related services advertise their sites prominently through the media. And I also know that some firms are alive enough to claim before the Commission that the concessions offered by Google are insufficient.
If it were really based on the exclusionary effects of Google’s practices on competing services (or if the Guidance were to be taken as the expression of a serious long-term commitment), the likelihood of these effects would be the central aspect of the investigation. However, I am again – I cannot help it – under the impression that the outcome of the case depends on other factors. As is true of the legal framework (Where’s the Law?) under which they are (if at all) being assessed, the likely effects of the alleged practices seem plain irrelevant in this regard. The only question that seems to matter –and this is a real pity, given the exciting and novel issues raised – is whether the commitments offered by Google are acceptable for the Commission.
Happy 2014 everyone!
The “smartphone war” has reached the Court of Justice in Luxemburg (and before it the Commission).
With it a whole host of funny acronyms have made a foray in EU competition law = FRAND, SEPs, NPEs, etc.
But more importantly, the smartphone war raises many interesting questions on the appropriate legal standard under Article 102 TFEU.
I just posted a paper on ssrn.com about it:
This paper discusses the legal test under which owners of Standard Essential Patents (SEPs) who have pledged to grant licences to those SEPs on Fair Reasonable and Non-Discriminatory (FRAND) terms can be held guilty of an abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union (TFEU) by seeking, or threatening to seek, injunctions against unlicensed implementers of their technology.
To that end, we use the theoretical framework described in a previous paper on rule-making in EU competition law (Petit, 2012). First, we sift through the various tests of abuse potentially applicable in positive EU competition law (I). Second, we show that an objective criterion should command the selection of a test of abuse, and suggests using the notion of ‘consistency’ (II). Third, we rank the applicable tests of abuse on grounds of consistency (III). Fourth, our paper generalizes those results to propose a framework for the assessment of new forms of conduct under Article 102 TFEU (IV).
Link here and comments welcome.
The EU Commission has often been – in our view incorrectly – criticized for its blindness to industrial policy considerations.
Caution: propaganda With my assistant Norman, we wrote a lenghty paper explaining how such considerations can, and should, play a – circumscribed – role in EU antitrust law.
A recent case suggests that industrial policy arguments are not devoid of all traction.
In Nynas/Shell’s Harburg Refinery, the Commission cleared the acquisition of distressed oil refineries by Nynas (
a nice an EU firm) on the basis of the failing division defense.
Interestingly, the reasoning seems based on the conjecture that absent the merger, the refineries would be shut down. As a result, there would be “reduce[d] production capacity in Europe for a number of specific oil products”. And the closure of those refineries would expose European consumers to the full exploitative might of Ergon, a
bad US importer.
Of course, the reasoning remains competition based. The Commission stresses that absent the merger, prices would likely increase. And assumes that with the merger, prices will not.
But this is only true if Nynas keeps the refineries in business.
My question then is: shouldn’t failing division defenses be systematically accompanied with a commitment from the acquiring firm to keep (all or part of) the acquired assets in operation?
After all, some companies do purchase fledging entities to shut them down, and meanwhile acquire technology, know-how, other intangible assets. This may be part of a strategy to actually gain control over supply and reduce capacity (think of Mittal Steel).
Well, a couple of hours ago Aoife White (Bloomberg) sent us the ultimate comic, one that has actually been done by DG Comp.
I was planning to write a few jokes about it even before having read it (my first idea was a fake news story, along the lines of “Belgian association of comic drawers sues DG Comp for giving away comics for free at Christmas time”) but I’ve just read the actual comic (it’s 9 pages and takes 3 minutes, no more), and I wouldn’t know where to start!
The story is about a busy, handsome (I guess, although I’m not really an expert on the beauty of drawn men) and passionate DG Comp official who wants to pick up a girl at an airport with the chat-up line “I work at DG Comp” and then starts showing off about how important his job is.
And I’m not kidding.
It’s available here: DG Competition Comic
“I work at DG Comp”, the ultimate pick-up line…