Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for the ‘Uncategorized’ Category

Tacit collusion to fight predatory pricing

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Fuel

I have thoroughly enjoyed teaching for the first time in the Executive LLM programme recently launched by the LSE. As is usually the case, one learns a lot from students. When discussing oligopolies and tacit collusion, Lars mentioned the creation of a Market Transparency Unit for Fuels (all capital letters, it’s after all a German authority) by the Bundeskartellamt. According to the authority, this initiative will make it easier to address ‘illegal predatory strategies and other forms of market power abuse’. Impeccable move. There is certainly nothing better than tacit collusion to fight predatory pricing!

Pablo

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Written by Alfonso Lamadrid

11 April 2014 at 3:25 pm

Posted in Uncategorized

Obama’s secret antitrust dealings in Brussels today

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Many EU officials and some of the fauna making a living around them as well as many -like me- working in the EU area in Brussels are (once again) experiencing security checks, traffic disruptions and blockades today due to the visit of US President Barack Obama to conmemorate the 10th anniversary of the Microsoft decision, and to lobby Vice-President Almunia with respect to the Gazprom and Google antitrust investigations  (Chillin’Competition has obtaiend a pic of the President discreetly entering the Madou tower this morning).

Chillin’Competition has also learnt that Obama’s travel arrangements haven’t gone according to plan:

First, Obama’s staff sent to Europe in advance to verify in person the recent developments on the antitrust damages front experienced some trouble as they were initiating the mission trying to consume a typical and typically cartelized product (beer).

Second, President Obama is reported not to have landed at Zaventem airport, as planned, but at the secret runway at Charleroi airport discovered by DG Comp (if you didn’t know about this one, click on the link; it’s too good to be true). Apparently, the managers at Zaventem told AirForceOne that it couldn’t land because the flight had not been scheduled with enough antitipation (“on sait pas faire ça, ici c’est la Belgique, monsieur“) were the exact controllers words.

Third, the President chose to spend the night at The Hotel (the usual venue for GCLC conferences) with the hope that he could perhaps attend a lunch talk. He couldn’t.

Finally, it seems that, at the end of the day, road blockages served no purposes:

TrafficDisturbance

Written by Alfonso Lamadrid

26 March 2014 at 12:56 pm

Recent developments in abuse of dominance and merger control

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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 competencia@ieb.es or drop me a line at alfonso.lamadrid@garrigues.com (I will be travelling for the next 30 hours (including 3 very tedious transfers…) so don’t expect a rapid response from me).

Written by Alfonso Lamadrid

17 February 2014 at 5:15 pm

Posted in Uncategorized

On information requests and their limits

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The latest entry in 21st Century Competition (Kevin Coates’ very good blog; btw, pictured above is a capture of his work keyboard) explains that the Commission has improved its habits regarding information requests and that there may still be some margin for further improvement.

Kevin’s views are, as always, sensible and well explained [he also has good taste for recommending other people's writings; see here in relation to the ongoing Android investigation]. They also bring a thought to mind: is self-restraint the only limitation -other than the general principle of proportionality- that the Commission faces in relation to its powers to gather information?

Together with my colleagues Luis Ortiz and Napoleón Ruiz (no kiddin’) I am arguing in a case that is currently pending before the General Court (T-296/11) that this shouldn’t be the case [btw, I'm not disclosing anything not public given that an interim measures order was already published].

Article 18 of Regulation 1/2003 provides that the Commission may require undertakings “to provide all necessary information“. In our view, however, this provision should not be interpreted as granting the Commission absolute discretion.

If our interpretation is correct and the Commission does not enjoy carte blanche in this regard, then the criterion of necessity in Article 18 should be interpreted in an objective manner; otherwise it would be rendered meaningless, with the ensuing risk of fishing investigations. We posit that the objective element of reference could only be given by the indications of the existence of an infringement that are already in the Commission’s power, and not just by reference to the subject-matter and purpose of the investigation. The recent and most interesting Prysmian and Nexans Judgments (in relation to inspections) would seem to lend support to this idea.

This interesting question, however, won’t remain open for long. The General Court is set to deliver its Judgments on a few parallel cases on 14 March (with the exception of ours, which had a very interesting post-hearing procedural peculiarity on which I can’t yet comment). We’ll provide you with our views on these Judgments as soon as they’re out.

Written by Alfonso Lamadrid

6 February 2014 at 6:48 pm

Milton Friedman and EU Competition Law. Did you know?

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Milton

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 ;)

Pablo

Written by Alfonso Lamadrid

22 January 2014 at 4:51 pm

Posted in Uncategorized

Awards

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Vote for me friends: here.

And three questions/remarks:

1. Why wasn’t Alfonso’s great piece on “Antitrust and the policital centerselected 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.

Written by Nicolas Petit

19 January 2014 at 6:59 pm

Posted in Uncategorized

Germanize me

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Written by Nicolas Petit

11 January 2014 at 7:21 pm

Posted in Uncategorized

Conference on Preliminary rulings in EU Competition Law

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GCLC Logo

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.

 

Written by Nicolas Petit

8 January 2014 at 9:20 am

Posted in Uncategorized

Exclusionary Effects in Google: Are They Relevant at All for the Outcome of the Case?

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[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!

Pablo

Written by Alfonso Lamadrid

30 December 2013 at 4:16 pm

Posted in Uncategorized

Paper on Injunctions for FRAND-pledged SEPs and Article 102 TFEU

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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.

 

 

 

Written by Nicolas Petit

27 December 2013 at 11:55 am

Posted in Uncategorized

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