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Football, TV rights and the ‘single buyer rule’: in a world of commitment decisions, bad policy dies hard
Many people love to discuss whether competition law is, or should be, about consumer welfare. Not me. I have never understood people’s mystical fascination with this question. In my view, it is essentially a distraction that is – most of the time – boring and irrelevant. The vast majority of cases can be decided without resorting to consumer welfare considerations. And the issues that really matter in EU competition law do not really need raising abstract questions about consumer welfare or, more generally, the goals of EU competition law.
Every now and then, however, there is an extreme case. Sometimes, things go so wrong that it is relevant to discuss the role of consumers – and their interests – in EU competition law. The Commission policy on the sale of football TV rights is my favourite example in this sense. I find it fascinating for two reasons: Premier League is a decision that not only ignores the features of the relevant markets but is expressly designed to harm consumers.
The star commitment in Premier League was to ensure that at least one package of the TV rights to the English football championship would go to an operator other than Sky (this is the so-called ‘single buyer rule’). The Premier League had already accepted to sell the rights to the championship in several packages. However, simply giving the opportunity to more than one player to buy the TV rights was not sufficient. It was necessary to force, through Article 101 TFEU, a competitive outcome in which there would be at least two broadcasters offering simultaneously this content.
The fundamental problem with the ‘single buyer rule’ is that it is an artificial attempt to change the nature of competition in the relevant market, and as such it is bound to fail. It requires all sorts of distortions to be a meaningful remedy. In the UK, Ofcom has done a good job at introducing additional distortions that have allowed BT to challenge Sky’s position in the UK. But we know that regulatory distortions are never for free.
The second problem is that it penalises consumers in an almost comical way. It is essentially a remedy that requires football fans to subscribe to two different television services to have full access to the televised games of the championship.
I have written about this on the blog already. The reason why I do so again is because I understand that the Bundeskartellamt is keen to introduce the ‘single buyer rule’ in relation to the sale of the TV rights to the Bundesliga (I would in fact be grateful for more info about this, as it is not obvious to find!).
What the news about the licensing of the TV rights to the Bundesliga show is that, in spite of all of the above criticisms, the ‘single buyer rule’ has acquired a life of its own. It seems to have emerged as a default remedy in cases concerning the licensing of TV rights, even though it was adopted in a very peculiar context. This is one of the consequences of the rise of commitments decisions. Some remedies become part of the acquis for no compelling reason. They are simply required without ever discussing whether they are necessary and/or proportionate.
Ben Van Rompuy and Alexandre de Streel have accepted my invitation to talk about these matters in a seminar organised in the context of the EU and Spanish Competition Law Course run by Luis Ortiz Blanco and Alfonso in Madrid.It will take place on 4 March I really look forward to that!
Last Tuesday I intervened at the GCLC’s annual conference, focused on the notion of restriction of competition.
What follows is an abridged version of my intervention (that does not include some of the worst jokes). Pablo, who gave me significant input and appears as co-author in the slides, and myself will be writing a joint piece on the subject soon.
One remarkable thing that conferences organized by practitioners have with European Commission initiatives is that they all seem to be aimed at working less. We don’t want fines, we don’t want abuse of dominance cases, less focus on key industries, less interventionism, etc. And now we want to clarify what a restriction of competition is? If competition law is fun (and if we all make a living) it is because it is open ended and evolutive. So in a way these attempts at clarification could be regarded either as a collective suicide or a collective attempt at output limitation [I illustrated the point with a gif of the collective suicide squad from “The Life of Brian” that some considered a bit gore…] Even Commissioner Vestager observed this yesterday.
My role in this collective suicide is to comment on what has been discussed these past couple of days and try to extract, from a legal viewpoint, common threads and lessons.
I had many comments on what has been discussed here, but no common thread. But then last night at the speakers dinner Masssimo Merola gave a brief speech and said that yesterday he had realized about both what he knew and what he did not know. I thought voilà, there’s my structure. So let’s focus on those two questions: what is it that we know, and what is it that we don’t know.
If 50 years into EU Competition policy and centuries after the common law doctrine of restraints of trade was developed a bunch of experts are getting together for two days to ask ourselves something as basic as what is a restriction of competition, an outside observer would immediately think that instead of a bunch of experts we’re a bunch of ignorants!
If we are here enquiring about the notion of restriction, that is because the wording of Articles 101(1) and 102 TFEU do not provide an operational test.
Indeed, if anything that limits competition or commercial freedom were to be legally considered as a restriction in the sense of 101(1), then everything would be caught by 101. As also noted by Sir C. Bellamy yesterday, restraint is the essence of every contract…. particularly marriage.
In my view, there is no point in trying to figure out what a restriction is by looking at the literal wording of Article 101(1) and 102 TFEU. It is a hopeless exercise to find an operational test from such vague provisions. They were intended to be open, adaptable, judge made. That is why I like to say that competition law is a distillation of common sense infused with mainstream economics.
It was said yesterday that there is no room in 101(1) for “consumer harm” and that perhaps we need to re-write article 101. But I think that provision was drafted the way it was precisely so that it would encompass everything: consumer harm and the contrary. It is not because there is no explicit reference in the letter of the provision to consumer harm that the case law cannot evolve in that direction, as it arguably has.
But do we really not know what a restriction is? If the conference has taught us anything is that the problem is not one of the concept in itself, but one of methodology, and even of terminology.
What is a restriction of competition in colloquial and in economic terms is perfectly clear (as clearly explained by Jorge Padilla): it’s a reduction of competitive constraints. The problems rather lie in how a legally relevant restriction is established (Do we look at the short or the long term? Process or outcome? How do we look at the positive effects of a restriction, or an apparent restriction? Can we tell a restriction following a quick look (by object) or do we have to examine in detail all circumstances relevant to its effects (by effect)?)
Instead of trying to draw lessons with a top-down approach, I propose to analyse what has been said in the conference in a different way: bottom-up.
Let’s focus then on what we know and on what that tells us:
What we know
If we look beyond case-specific often conflicting discussions on the notion of restriction and we pay attention to what the Court has actually clarified over the years, we believe it is fair to say that we actually know a great deal about the sort of conduct that amounts to a restriction of competition.
It is true that the case law is uneven, and that some issues are yet to be clarified, so let’s focus only in those areas where there really is a significant consensus.
- First, and most important of all, the case law is very useful to understand what a restriction of competition is not.
It makes sense to announce in the blog, before it is too late, that Transport for London has dropped the proposals I discussed at the beginning of last month. No doubt, TfL realised that they were indefensible.
As I suggested then, another factor may have played a role in this outcome. Maybe, TfL and the incumbents pushing to ban or water down Uber have been victims of the well-known Tyranny of the Status Quo. It is very difficult to alter the balance of interests that results from the status quo. This has been Uber’s bet all along in every city and it appears to have worked in London: move fast and expand so there is no way back. The Tyranny of the Status Quo typically works to prevent desirable regulatory change. Uber’s genius has been to turn it on its head.
It is only fair to praise TfL not only for having had the courage to abandon indefensible changes in regulation, but for the transparency and the openness of the procedure. Unfortunately, the desirability of regulatory change has not been the subject of a proper debate in many Member States. Coercion and violence, more than a proper discussion of ideas and evidence, have often been the means through which the issue has been addressed. It is refreshing to see a regulator inviting the public to submit comments and taking them seriously.
The Uber v TfL saga teaches an important lesson to competition lawyers. I insist on it in my work. Substance and procedure and mutually intertwined. The institutional structure through which a regime is enforced has a significant impact on the content of the law. Desirable regulatory change is more likely to occur in an open and transparent procedure. Conversely, bad ideas are more likely to inform regulation and prevent change where issues are decided in closed rooms.
Another lesson I draw from the saga: not only will it be good for the UK to stay in the EU. It is very important for the EU that the UK stays. But that is a different story…
The European Internet Foundation invited me to participate at a dinner-debate on digital platforms held last Tuesday at the European Parliament. It’s the second time that I go to the Parliament to discuss this sort of issues (the first time was this one) and, for someone who, like me, has an odd frustated political vocation, that is always an interesting experience.
It felt partly like a déjà vue , but it was fun. The main innovation in my speech as opposed to my previous interventions on the subject was a change in the jokes used (the new ones weren’t better, though), but essentially the ideas I developed there are the same ones that I set out here as part of our inter-platform dialogue with the DisCo blog.
The type of audience that was present on Tuesday (MEPs, representatives of the industry and policy experts) also led me to emphasize a message: that the passage of laws is not more important than the outcome of their enforcement.
By the way, in case you haven’t read it, last week the European Parliament adopted a resolution on the annual report on competition policy. I like how it “welcomes the new Commissioner’s refusal to bow to political pressure” and then goes on to give directions on what to do regarding specific companies and markets… There are nevertheless some interesting ideas in it.
P.S. The next “public appearance” will take place tomorrow in Madrid: Seminar on recent developments in competition law (EN_ESP) 29 Jan (this time on the notion of “single and continuous infringement”).
Last time I wrote on Uber, I mentioned the recent ECJ ruling on Scottish legislation setting a minimum price per unit of alcohol. These measures are intended to address binge drinking, which, I understand, has become a serious issue in Scotland and the whole of the UK. The Guardian published the other day an interesting – and shocking – piece on the impact of binge drinking on the National Health Service.
What would be the status of similar measures under competition law? I thought of a couple of hypotheticals to show that, under a proper construction of Article 101(1) TFEU, private measures of this kind would not necessarily be problematic.
Example 1: It is well-known that nutrition is key to prevent heart disease, even to those (including Alfonso and myself) who enjoy a burger at Five Guys. Those with a history of cardiovascular problems, or those who want to prevent them might find it a challenge to eat out. Imagine a group of restaurants that create a common label, ‘Heart Healthy’. These restaurants commit to follow the guidelines issued by cardiologists and would give consumers the guarantee that healthy menus would be available.
I do not think anyone would argue that an agreement of this kind is akin to a cartel. It is closer to a standard-setting agreement or a certification mechanism. But please note that the restaurants would go a long way in the coordination of their conduct. They would agree, inter alia, not to add salt to the dishes, not to use red meat (or not to use meat at all) and not to use certain types of oil (or maybe not to use oil at all). Moreover, they might agree to limit the size of their portions (cardiologists insist that portions in some restaurants are too big; Alfonso is not convinced). All of these restraints, examined in isolation, look like those found in cartel agreements, but the rationale of the agreements and the context are clearly different.
Example 2: What if a group of small, independent grocery stores do something similar? A group of retailers could create a common label, ‘Ethical groceries’, and commit, inter alia, to strict animal welfare standards. For instance, they would not sell products like foie gras. They could also commit not to contribute to the negative impact of binge drinking on the community and agree not to sell alcohol in their premises. The label would allow consumers to recognise the stores that share certain views on business practices. A certification scheme of this kind could not be more different from a cartel. Again, I struggle to see how it could be argued that an agreement of this kind is restrictive of competition by object, but I would love to read the views of those who disagree.
Example 3: I have just argued that an agreement between small, independent grocery stores not to sell alcohol and other products is most probably not a restriction of competition by object. What if the same independent stores decide to set minimum prices for alcohol? If an agreement not to sell a product in this particular context is not a cartel, I fail to see why price-fixing should be treated differently. If anything, an agreement not to sell a product at all should be treated more harshly than an agreement setting minimum prices.
The reason why this agreement between small, independent grocery stores should not be treated like a price-fixing cartel seems clear. These small retailers would not have significant market power. And we know very well that a cartel worthy of the name only exists where its participants have market power. If a group of small rivals agrees on price-fixing, they would be harming their profitability. They are in fact foregoing profits to bigger rivals who sell alcohol or who compete on price. If price-fixing in this particular context is not an obvious profit-maximising strategy, the explanation for the arrangement must be a different one (in this context, it would be part of a certification mechanism).
I do not think I am saying anything new. We have acquired sufficient experience to know that not every price-fixing agreement between competitors is restrictive by object. Just take a look at the examples cited by the Commission in its recent Guidance on the question. And I guess the lesson is clear. The nature of the agreement and the economic and legal context of which it is part must always be considered. There are no shortcuts and certainly no exceptions to the principle!
ECJ’s Judgment in Case C-74/14, Eturas (on the scope of “concerted practices” and on technological collusion)
Yesterday the ECJ rendered its awaited Judgment in the Eturas case on the boundaries of the notion of agreement and, specifically, on concerted practices. (An English version was not yet available last night, so what follows uses my own relaxed translation from the French version).
The case originates in a preliminary reference from the Lithuanian Supreme Administrative Court in the context of annulment proceedings against a national decision finding that travel agents had coordinated the discounts applicable to clients.
What makes the case particularly interesting, is that the alleged coordination would have taken place via an online travel booking system (E-TURAS, owned by Eturas) used by more than 30 travel agents in Lithuania. The question that attracted interest to the case was, in essence, that of whether a common electronic platform facilitates collusion, an issue that has elicited interesting comments in recent times (see here for an interesting paper by Ezrachi and Stucke, and here for a New Yorker piece (When bots collude) on a US case involving coordination through an algorithm). Online poker players discovered these problems a long time ago, so my brothers say…
According to the Lithuanian authority, prior to the alleged infringement the director of the Eturas had sent an email to other travel agents asking on a vote on whether discounts should be reduced (there is only record of one agent having received it). Following those emails
- a system notice was sent via the internal E-TURAS messaging system announcing that on the basis of the declarations, suggestions and wishes of agents, discounts were in principle capped at 3% (the message was available and could only be consulted in a section of the system called “information messages”; there is only evidence that two agents accessed it; no one replied and no one took public distance from the message either) and, subsequently
- a technical restriction was set in the E-TURAS system (integrated in the websites of the agents) limiting to a maximum 3% the discounts available for online bookings (the technical restriction did not preclude larger individual discounts, but those required additional technical actions)
The national competition authority found an infringement as it observed that agents had not publicly distanced themselves from the initiative, could have reasonably assumed that others had received the same message and were likely to abide by it, and it inferred that agents had previously discussed these actions. An annulment action was partially upheld and fines were reduced, but both the authority and the companies appealed before the Administrative Supreme Court, who referred two questions to the ECJ:
—First question: is the fact that a message was sent enough to establish that its addressees became or should have become aware of its content, and that by not opposing it they acquiesced in a way that would make them liable under the competition rules?
The ECJ starts off recalling the principles that companies are to determine their behavior autonomously (27) and that “passive modes of participation” (i.e. complicity/facilitation) are also caught by Art. 101 (and refers here to the recent Judgment in Treuhand (28)) (our comment on that one is available here).
The Court nevertheless explains that, whereas there is a presumption that companies take into account the info exchanged with others for determining their behavior (33, citing the infamous T-Mobile), the question posed by the national Court is not really about that, but rather about an evidential issue (34). As recalled in paras. 29 to 32, issues pertaining to the standard of proof are not harmonized by Regulation 1/2003 and therefore remain a matter of the national law at issue provided that the principles of effectiveness and uniformity are respected.
The principle of effectiveness requires that national rules on evidence don’t render the application of EU law impossible or excessively difficult; accordingly, it requires that not only direct evidence, but also indicia, be valid to prove an infringement (35-37). However, if, as in the case at issue, the national Court has doubts as to whether the travel agents became or must have become aware of the content of the system notification, then the presumption of innocence applies, in the sense that the mere sending of the notification cannot be in itself enough to infer awareness of its content (38-39). It could nonetheless be used in combination with other objective and consistent indicia to establish a rebuttable presumption of awareness (40).
According to the Judgment, the national Court should not make it excessively difficult for the companies to rebut this presumption; for instance, they should be able to show that they had not received the message, consulted that part or read it until some time had elapsed.
—Second question: in the event of a negative reply to the first questions, what elements should be taken into account in determining whether undertakings participating in a common system like the one at issue take part in a concerted practice?
The ECJ recalls that a “concerted practice” implies not only an element of concertation, but also an ensuing behavior on the market and a causal link between the two (42)
After repeating the facts of the case (43), the ECJ holds that (a) those agents that were aware of the content of the system notification could be presumed to have tacitly acquiesced provided that the other elements (behavior + causal link) are met and thus be liable as from the moment of reception (44); and (b) those agents whose awareness cannot be established cannot be presumed to have participated in a concerted practice by virtue only of the implementation of the technical restriction (45).
A presumption of the participation of a given undertaking in a concerted practice can nonetheless be rebutted by publicly distancing itself from that practice or by reporting it to administrative authorities. In addition, the Court says that, according to the case law, in the absence of a collusive meeting there may be other ways of rebutting the presumption (46).
With regard to “public distancing”, the Court observes that in a case like this, in which it is impossible to identify all addresses of the message, it cannot be required that a company distances itself in the eyes of all other addressees (47), and takes the view that a “clear and explicit objection” addressed to the system administrator would be enough to rebut the presumption (48). AG Szpunar had suggested something similar in his Opinion, adding also that ignoring the communication or instructing employees not to abide by it would not have been sufficient.
With regards to the other means of rebutting the presumption of having participated in a concerted practice, the Court states that, in circumstances such as the ones at issue, the causal link could be rebutted by showing that the company systematically applied a discount exceeding the cap (49).
On the first question -whether prove that a message was sent is enough to presume the awareness of the recipient- is rightly treated by the Court as a matter of evidence subject to national law; the Court’s reasoning in the regard is sound and consistent.
Usual readers of the blog have my issues with the principle of procedural autonomy (it is an undeniable problem that the outcome of cases dealt with the same provisions – Art. 101 and 102- can vary so much depending solely on the authority that handles it because in real life cases procedure matters, in practice often more than substance.
We all know that the principle of procedural autonomy is often eroded by the principles of effectiveness and uniformity (there are several examples in competition law; see here). When those principles are applied, however, the result is typically to enlarge the scope of rules, powers of prohibitions (in practice effectiveness tends to weigh more than uniformity…). But in Eturas the Court says something interesting, even if obvious: above all, above other presumptions, and also above effectiveness, is the presumption of innocence, and in the face of doubt, the solution is clear. So, there are two outer limits to procedura autonomy in this regard: proving something cannot be too easy (presumption of innocence) nor too difficult (effectiveness).
In its response to the second question, the ECJ’s approach consists in applying the same principles (presumption that info will be taken into account + requirement of public deviation) but with some flexibility to account for the peculiarities of the technology at issue (i.e. admitting other means of distancing, not requiring that distancing be done with regard to all others, and not suggesting, like the AG’s Opinion did, that it could be necessary to also inform customers).
The Court also admits that distancing can be shown by conduct on the market, but provided that it is “systematic” (AG Spuznar’s Opinion had proposed not to accept market conduct as a valid element of rebuttal as it could hardly be distinguished from “cheating”). This is sensible, and in fact there are several precedents in which EU Courts accepted distancing that did not involve express declarations (e.g. Cases T-208/08 and T-209/08, Gosselin Group v Commission, para 161 or Cases T-122/07 to T-124/07, Siemens AG Österreich, paras 60-61).
Furthermore, the ECJ introduces a twist –not so visible in AG Szpunar’s Opinion- which is to make the establishment the concerted practice conditional on the finding that a given company was aware of the content of the message. Note in this regard that the second question posed by the national Court was consciously and expressly framed in a way that assumed that the companies were not aware of that content. Nevertheless, the ECJ rejects the possibility that a concerted practice is proved in the absence of evidence on awareness of the message (45). This is sensible and in line with previous case law.
The implications of the Judgment are interesting:
Companies sharing important IT functions with competitors will now have to carefully craft protocols to avoid possible liabilities. I have my ideas on how to do that, but I (or rather my firm) bills for those ;)
Questions remain open, particularly concerning system administrators. For instance, in para. 48 the ECJ accepts that distancing may be done only vis á vis the “system administrator”. But in that case, what obligations fall upon the system administrator? Would the immediate forwarding of that message or the withdrawal of the initial communication exempt it from liability? If yes, would that run counter the effectiveness of the prohibition given that a signal was already sent? If not, what incentives would it have to correct its behavior?
Also, would a “suggestion” or “recommendation” on pricing –as opposed to a technical restriction- be enough of a signal to give rise to a concerted practice? Is the legality of the system administrator’s conduct conditional on the actions adopted by the users of the system? (after all, in the absence of a concerted practice, its conduct would be unilateral and hardly objectionable, unless perhaps framed as an individual abuse of collective dominance –in what would be a mixture of the EU’s Irish Sugar and the US’s Ethyl case on facilitating practices-). And, in in this sense, could the use of a common IT system be considered as a structural link relevant to establishing collective dominance? I guess not, but take a look at Italian Flat Glass…
My bet is that it won’t take long before these questions come up again.
Kevin Coates has just published on his own blog the excellent introductory remarks he made for one of the panels of our Chillin’Competition conference. We very much encourage you to read it. They are available here.