Searching for an answer. A few days ago I asked Pablo in public (following some private teasing) whether there is any Article 102 TFEU decision adopted by the Commission that he liked. He tells me he replied with a blog post last week (see here). Perhaps I read it too quickly, because I don’t see an answer :) In any event, the fact that he did not identify any case with which he agrees probably means that there is no such thing.
[Intermission: the fact that we are good friends enables us to discuss things in a way which would be much harder to do with other people. This was also the case with Nico back in the day. This, by the way, confirms that having another brilliant academic with views not always coincidental with mine was a great decision for this blog].
This failure to choose is interesting because, in my view at least, the Commission is quite (perhaps too) selective when it comes to picking abuse of dominance cases (that is unless they are predestined to go through the commitment route; it’s those that I personally like the least, not the Article 7 ones, which tend to be quite solid).
Law in abstract and Law in casu. The reason Pablo doesn’t reply citing specific cases is because he says he “does not see Commission decisions that way” (I can see how people don’t have a list of “best” and “worst” decisions, but if anyone had one, it would have been Pablo…). His point is that he doesn’t really care about cases, nor about who wins or loses, but about “the way in which the law is shaped and evolves over time”.
This is commendable for an academic, but I’m not sure I agree with the implications. In competition law it is cases that shape the law and that drive its evolution, so one can perfectly assess cases in the light of their contribution to the state of the law. If what Pablo means is that he doesn’t care what party wins or loses, I can testify that he truly doesn’t. If what he means is that cases should not be driven by policy but by the law, then we fully agree. However, I don’t see why all of this could mean that there cannot be cases that he likes or dislikes.
The approach of a practitioner is not, or should not be, so different. I only care about the party who wins when the case involves a client of mine. I also take an interest, but one that has nothing to do with the law, when a friend is involved (for disclosure purposes: I have good friends involved in Intel and Post Danmark II). As for the rest of the cases, I have enough with understanding the case-law and how it can relate to my clients’ issues, and I am not so concerned about contributing to the evolution of the law in a particular direction (partly because I don’t know what side I’ll be on in the future, and partly because it would be pretentious on my part: I would rather leave that to those whose jobs is to study cases in the depth they deserve, like the parties to every case, the judge, the clerks, or the academics who may want to contribute to the debate).
In sum, I’m not in the business of trying to influence the evolution of the law (except when paid to do it), and this is what explains that I haven’t written about the ongoing debates on exclusivity rebates, Intel and Post Danmark II, that occupy Pablo and others at a time when these important specific cases are pending.
Pablo’s whole post is about returning a question to me (never mind that mine wasn’t answered!), and to compel me to
spend part of a Sunday morning typing instead of doing better things break my silence; the question is:
Do I believe exclusive dealing should be prohibited absent an objective justification or whether, instead, Article 102 TFEU enforcement should follow the principles set out by the Commission in the Guidance and by the Court in Delimitis?
On the key assumptions underpinning the debate. Pablo’s post notes that his (brilliantly written) paper on Intel , everything, exclusive dealing and loyalty rebates focused not on who won or didn’t, but on the “key assumption underpinning 35 years of case law”.
Discussing key assumptions makes a lot of sense, so let’s start from there:
-Unless I’m wrong, the key assumption underpinning 35 years of case law is that in markets characterized by the presence of a dominant company (not the case in Delimitis, mentioned by Pablo), the use of exclusivity inducing arrangements can be deemed prima facie restrictive of competition. I’m familiar with the case law in this regard and actually think that this is sort of intuitive, for exclusivity almost by definition raises barriers to entry and deprives rivals of scale (as Pablo has very well explained in other domains –see here-, EU Courts have been able to implicitly incorporate sound economic insights to their case law). Many of the most reputed competition economists do not seem to question this. I won’t bother to conduct research on this point for a blog post, but I happen to have read this Carl Shapiro piece yesterday for a case in which I’m working, and it is quite clear.
– And unless I’m wrong, the key assumption underpinning the critique to that case-law is that “the lessons of experience and economic analysis” (this is the formulation in vogue, also used in Pablo’s post, tailored to evocate the Cartes Bancaires Judgment and draw a parallel) undoubtedly show that exclusivity arrangements are more often than not procompetitive, also when carried out by a dominant firm. Leaving aside the fact that experience and economics do not always go hand in hand, there is this widespread assumption that according to economic “science”, it is absolutely beyond discussion that the law here is a mess.
Leaving the theoretical economic literature aside (basically because I don’t know much about it; query: is there so much conving research on the advantages of exclusivity when carried out by a dominant firm?), I know from my personal experience with companies that exclusivity inducing rebates may –in certain cases- be perfectly justified by reasons other than anticompetitive motive. But I frankly do not know whether these outweigh, in the abstract or in general, the anticompetitive perils associated to these practices when carried out by a dominant player.
Those who have heard my presentation on two-sided markets or that will read my forthcoming Competition Law Journal article on the subject will realize that I’m all for taking into account economic lessons -when they are well established- for the application of the law. I’m simply not fully persuaded that economic research so clearly shows that the current state of affairs in the EU is so manifestly wrong.
Since I am asked, in my view the current state of the law strikes what seems to be a reasonable balance, at least in theory. It may, like almost anything, be debatable, but I fail to see it as the epitome of absurdity:
-In the field of Article 101, the Commission’s soft law as well as the case-law (mainly Delimitis, cited by Pablo) explicitly acknowledge the mixed effects that exclusivity agreements may have, and subject them to a balancing test in which the burden of proof rests on the accusing party. No one seems to complain about this.
-In the field of 102, the case-law takes into account that the degree of competition is already lessened by the presence of a company that is, by definition, able to behave independently of competitors and customers (in a way, conducting a strict foreclosure/effects assessment from this starting point risks incurring a variant of the cellophane fallacy, which is what the Court said, in a way, in the heavily criticized para. 245 of Michelin II) and strikes a different balance. This is explicitly explained in para. 89 of the Intel Judgment.
In the 102 domain, precisely because competition is considered to be reduced, restrictive effects are presumed in a first stage, BUT there always remains an open door to show that the practice is not abusive because parties can always show that the arrangement is objectively justified.
This reflects a double assumption that exclusivity always makes life more difficult for the competitors of the dominant company (as explained in para.150 of Intel, the analysis favored by the Court is one of difficulty, not the one of impossibility linked to the as-efficient competitor test set out in the Guidance; this is a crucial point that many overlook and that has to do with how we define foreclosure) and that sometimes exclusivity is part of a procompetitive strategy.
As I hinted in the first comment to Pablo’s post on Intel, this is key. If this escape door were not here, I would also take issue with the case-law. But it is, as unequivocally stated in paras. 94 and 173 of the Intel Judgment. In my view, this explicitly acknowledged the economic lesson that in some cases these practices may be procompetitive and hence should not be prohibited. Why is this, legally speaking, a problem? To the extent the presumption can effectively be rebutted, I see no problem to it.
Now, a different debate is whether an “objective justification” defense is a mere chimera or not, and there, I do agree that it should be a real possible defense, not just some nice wording.
In an ideal world, and like I have said more generally with respect to 101, presumptions at the level of establishing the restrictive effect of a given practice should not be so important as they are. Firstly, because if something is so obviously restrictive to be deemed restrictive, then it should not be so difficult to show effects (as, by the way, both the Commission and the General Court were able to do in a few hundred pages in Intel; this, on the other hand, is probably a very good example of why shortcuts may make sense). Secondly, and conversely, because if a practice is so obviously pro-competitive, and if defences (like 101(3) and the objective justification notion) were effectively available, then there would be no obstacle for the practice to be redeemed this way.
On the old debate of form and effects. I have in the past set out very clearly my views on the interface between competition law and competition economics (see here), so I won’t repeat myself. Let me just add that when it comes to exclusivity inducing rebates, even people not at all suspect of “ordoliberalism” [one day we should try to clarify here what this means], like Commissioner Josh Wright, are of the view that cost assessments (like the one advocated for in the Guidance Paper) might not be well suited for loyalty discounts, because their essence lies not in price but on exclusivity (see his speech “Simple but Wrong or Complex but More Accurate? The Case for an Exclusive Dealing-Based Approach to Evaluating Loyalty Discounts”. On this point, see also the excellent writings of one of our Friday Slotters, Einer Elhauge (see e.g. pages 463-464 of this great one).
“Rules and standards need to be crafted to ensure that they are accurate and administrable” is a phrase that appears at the end of Pablo’s post, and that leads me to one final comment. The current situation is, in my view, the one that is easiest to be administered, and, importantly, the one that requires less work from the lawyers, and particularly from the economists advising the dominant company. If we were to apply the Guidance paper test to all these cases, we would need to deploy hordes of public officials, and countless hours of lawyers and economic consultants (as if something good comes out of that mix…)
Under the current situation, on the contrary, companies know that except for one red line, they can design their rebate schemes the way they wish. Most of the objectives of exclusivity inducing practices can be achieved through other, perfectly legitimate and less risky, means. With less intense but more refined and creative legal and economic advice companies could continue competing intensely on the merits whatever the rule on loyalty-inducing rebates.
I laughed when Alfonso asked whether there is an Article 102 TFEU decision adopted by the Commission that I like. I laughed in part because I understand why someone might come up with such a question, but also because the image of an academic curmudgeon grumbling from an ivory tower is undeniably comical. After the healthy dose of laughter, I realised the question was more interesting than I initially thought. As is often the case with jokes, it is one that raises pretty fundamental issues. The short answer, and the sad truth, is that I do not see Commission decisions that way. I will elaborate a bit to make sure Alfonso feels compelled to answer the question that I have for him and that you will find at the bottom of the post.
I am not interested in the outcome of individual cases. Really not. I am not even sure that it is possible or meaningful to like or dislike a particular decision examined in isolation. The many posts I have written in relation to the Google investigation would have been written in any other context giving rise to the same issues. When I wrote about the GC ruling in Intel, I never sought to argue that the company had not breached Article 102 TFEU. I am interested in the way in which the law is shaped and evolves over time, and not so much in the ‘who wins’ or ‘who loses’ a specific case. These questions are necessarily relevant for civil servants and practitioners, but matter little to me.
Just take a look at what Alfonso and I wrote about Intel to illustrate the above. He presents the ruling as a ‘victory’ for the Commission and explains how the General Court carefully crafted the judgment in anticipation of the appeal. My entry, on the other hand, was devoted to the key assumption underpinning 35 years of case law on exclusive dealing and loyalty rebates. After reading my paper on these issues, a friend told me, only half-jokingly, that the title was misleading, as it was not really about Intel, but about everything. Well, exactly.
The question is also valuable in that it provides an opportunity to emphasise the difference – that can never be emphasised enough – between law and policy-making. A case may well be sound from a policy standpoint, but this fact alone does not mean that it is necessarily justified from a legal one. It is not unusual to hear people say that a particular case ‘must be right’ because the company in question is superdominant or has done something that looks mischievous. Some people have reacted to my posts on the Post Danmark saga by saying that action by the Danish competition authority was justified because it concerned the behaviour of an incumbent in a recently liberalised industry. Again, this is not the point, and it is not the reason why I wrote about the case. More important, these are dangerous arguments.
Ignoring the law to focus on the outcomes of individual cases is, and has always been, a recipe for disaster. A particular rule may seem unproblematic, from a policy-making standpoint, if it is confined to an exceptional case arising in very particular circumstances. We know well by now that, once a rule is laid down, it is only a matter of time before it is expanded in other contexts that have little to do with the specific factual scenario in which it seemed appropriate and innocuous. Alfonso likes to quote Areeda emphasising the importance of defining sensible limiting principles to enforcement in competition law. As you can see, I like to do so too. It is indeed one of the most important lessons to draw from decades of enforcement.
Just think of Intel again. I never argued that the outcome was wrong. In fact, the case is particularly interesting in that it exemplifies the commitment of the Commission to devote its resources to cases where negative effects on competition are likely. As a result of this commitment, reflected in the Guidance, it may well be the case that the prima facie prohibition of exclusive dealing and loyalty rebates does not make a practical difference when action by the Commission is at stake. This fact does not mean, however, that the perpetuation of a rule that fails to capture the lessons of experience and economic analysis is unproblematic.
The Commission may carefully choose to intervene in clear-cut cases, but what if a national court is asked to intervene in a case where anticompetitive effects are implausible? In the era of private enforcement and decentralisation, it is simply no longer possible to rely alone on the expertise of the Commission and its ability to prioritise cases. Whether or not the authority ‘gets it right’ in a particular case is not the only relevant question anymore. As the Post Danmark saga shows, much has changed since Hoffmann-La Roche, and rules and standards need to be crafted to ensure that they are accurate and administrable. These are the concerns that prompted my paper on Intel and my many posts on Article 102 TFEU. Nothing to do, as you can see, with whether I like or dislike a specific decision.
In light of this extensive answer, I feel entitled to ask Alfonso whether he believes exclusive dealing should be prohibited absent an objective justification or whether, instead, Article 102 TFEU enforcement should follow the principles set out by the Commission in the Guidance and by the Court in Delimitis. Alfonso?
My blogging inactivity over the past few days has to do with spending two weeks in Luxembourg for hearings with a short visit to Madrid for this seminar, which, btw, exceeded the already high expectations. In intense weeks like these ones I tend not to post even stuff I’ve written before because the downside of having your own clients read your blog is that they may get the impression that you’re blogging instead of preparing [Note to them: don’t worry, nothing further from the truth…].
This is all to justify say that today’s post will not be very brainy; here is just a compendium of short reflections spurred by recent experience:
On litigation. I’ve always said that litigation is the most fun part of my job. The problem now is that with the prevailing “amicable” solutions in antitrust (settlements and commitments) the scope for litigation is getting narrower and narrower (as clearly reflected in the joint slides by Judge Van der Woude & Nicolas Petit available here). The result is that most competition-related litigation nowadays is State-aid related. I, for one, am involved now in over 30 ongoing State aid appeals. I guess it’s a consolation that at least one area of competition law is still within the realm of judges.
On state aid. State aid now gives rise not only to most litigation, but also represents a higher percentage of the output of DG COMP than mergers, cartels or abuse of dominance. Nevertheless, it receives much less attention from the people who typically comment on antitrust issues. In previous posts I’ve given my view of the possible causes for this (see here) but today I’ll focus on a consequence: in State aid the Commission can get away with some absurd arguable or inconsistent decisions with no one even noticing. Fortunately, EU Courts are trying to remedy that with some sensible case-law, which also goes similarly unnoticed.
On the Legal Service. Some time ago I also wrote a post on the Legal Service (see here) which earned me some criticism from fellow practitioners who thought I was being too nice to “the enemy”. After some recent hearings in which I’ve been opposing and disagreeing with them I have to stand firm on commending their work, particularly given the acts that they sometimes are obliged to defend :)
On the press and competition law. In the past few weeks there were also a few cases on which I have worked that appeared in the general press, and this also triggered a reflection. The coverage that non-specialized press often does of competition cases is shameful subject to improvement, often trying to present everything under a simplistic light attempting to give the impression that everything is a scandal (what they have done with the alleged dairy cartel in Spain is a very good illustration of this). This makes me wonder whether that is also the case with regard to other issues that I don’t know first-hand. Like with lawyers, the differences between good and bad journalists can be enormous, and in Brussels there are competition journalists who know more about competition law than many lawyers, but at the national level… Considering the increased politicization of competition law (see here), the messages conveyed to the general public are increasingly important, and wrong messages may well lead to wrong decisions.
On Spanish competition law. Some of you have recently inquired about why, despite being two Spaniards, Pablo and I don’t comment on Spanish competition law developments. Well, aside from the fact that the scope of the blog is wider, we’ll comment on those whenever we have something positive to say… The only recent welcome development which deserves a comment is the sensible Supreme Court Judgment on fines on which we still have to comment (I’m waiting to see whether the consequences are the apparently intended ones). This Judgment, by the way, reminded me of something that is applicable to many debates on competition law enforcement and judicial review: much more than institutional arrangements, what matters is having prudent and knowledgeable people doing the work.
On Pablo’s most recent posts: A few of you reacted in private to Pablo’s recent posts on Post Danmark II asking whether he’s ever liked any abuse of dominance case ever done by the European Commission. I thought that was a very good question (and have been teasing him with it for a few days) and one that it’d be interesting to pose him in public. So, Pablo?
I explained last week why it is difficult to infer from the case law an operational test for the assessment of standardised rebates. The purpose of this second post is to start a discussion about the principles that should guide the definition of such a test. I do not believe a single approach is possible or conceivable, and I welcome your views on the question. As in other areas, there is more than one substantive standard that would appropriately capture the principles underlying the case law. Regardless of one’s stance, I see the following ideas as a sensible starting point for a discussion around the definition of a legal test:
- The ECJ presumes since Hoffmann-La Roche that quantity rebates are pro-competitive (or, if one prefers, a valid form of competition on the merits). Any legal test should be devised in a way that is compatible with this principle (both in theory and in practice).
- Quantity rebates do not always have a negative impact on the competitive process. One of the fundamental lessons to draw from Michelin II is that exclusionary effects are not an inevitable consequence of the implementation by a dominant firm of a system of quantity rebates.
- In Post Danmark I, the Court considered that the award of selective price cuts to attract the customers of a competitor is not abusive by its very nature. Absent evidence of predatory pricing within the meaning of AKZO, it is necessary to show that the practice has (or is likely to have) exclusionary effects.
Standardised rebates vs. selective price cuts. I would conclude from the above that a system of standardised rebates like the one examined in Post Danmark II should only be deemed abusive under Article 102 TFEU where there is evidence of its actual or likely exclusionary effects. This is the substantive standard that applies to selective price cuts à la Post Danmark I. I cannot think of a reason why a scheme of standardised quantity rebates should be subject to a more stringent test. In Post Danmark I, the price cuts were specifically devised to attract the customers of a rival. What would justify a stricter treatment of price reductions that apply uniformly across the board?
If anything, a system of standardised rebates is clearly less suspicious and more obviously pro-competitive than the application of selective price cuts. In the case of quantity rebates, price reductions are the consequence of an increase in the amount acquired from the dominant firm. Selective price cuts, instead, reward a decision to switch suppliers. It is therefore safer to presume that the former reflect the cost savings made by the dominant firm. If this is so, I would claim that the need to provide evidence of an exclusionary effect in the case of quantity rebates became inevitable the moment Post Danmark I required evidence in this sense in relation to selective price cuts.
Establishing exclusionary effects in practice. The next question is of course that of how exclusionary effects are established in the context of a particular case. The issue can be approached in two ways. One possible approach is to assume the exclusionary effects of a rebate scheme from the fact that it is ‘loyalty-inducing’. This legal test would be problematic for several reasons, some of which have already been mentioned above and in last week’s post.
- One reason is that we know from the case law (the ‘experience’ mentioned by the Court in paragraph 51 of Groupement des Cartes Bancaires) that the exclusionary effects of rebate schemes cannot simply be assumed from their ‘loyalty-inducing’ nature, even when applied by dominant firms. They may or may not be manifested in the context of a particular case.
- Another reason is that the point of the selective price cuts examined in Post Danmark I was not conceptually different from that of ‘loyalty-inducing’ rebates. The price cuts in question sought to attract the customers of a rival. In other words, they sought to reward disloyalty. I cannot think of a valid reason why ‘loyalty-inducing’ rebates would be prima facie prohibited irrespective of the effects they produce and ‘disloyalty-inducing’ price cuts allowed absent evidence of exclusionary effects.
- Finally, one should bear in mind that all rebates are, at least to some extent, ‘loyalty-inducing’. Rebates, irrespective of their nature and objective, provide an incentive to buy more from a particular supplier. As a result, it seems possible to argue in virtually every instance that a given scheme is ‘loyalty-inducing’ and as such should be prohibited. Thus, not only would this approach fail to provide the basis for a practicable legal test but it would also contradict the principle whereby quantity rebates are presumed to be pro-competitive.
A second possibility is to endorse the logic underlying the Court ruling in Post Danmark I. In essence, this approach would involve showing that the practice it at least likely to harm the ability and the incentive to compete of equally efficient rivals. A legal test revolving around this question would have the advantage of consistency. The same substantive standard would apply to all practices that are not deemed abusive by their very nature. In the current state of the case law, this category includes not only quantity rebates and selective price cuts, but other practices like ‘margin squeezes’, the abusive nature of which is established in accordance with the same principles.
There are several ways in which the impact of a system of quantity rebates on rivals’ ability and incentive to compete can be established. The Court held in Post Danmark I that equally efficient competitors are unlikely to be excluded where the dominant firm charges above-cost prices. Accordingly, it would be necessary to show that the system of quantity rebates is in some way predatory (that is, that it forces rivals to sell below cost). I welcome views on the question, but I struggle to find how it would otherwise be possible to establish the exclusionary effects of schemes like the one examined by the Court in Post Danmark II. Such schemes do not seek to reward loyalty, nor are they conditional upon customers buying a certain share of their needs from the dominant firm. AKZO and Post Danmark I (as opposed to Hoffmann-La Roche and Delimitis) therefore look like the closest precedents.
A legal test based on these principles would not only have the advantage of consistency but would be infinitely easier to administer than the existing unstructured standard. We tend to forget, when thinking about these matters, that the AKZO test was developed by the Court, not the Commission. In its decision, the latter favoured an unstructured standard based on a range of factors. According to the Commission in AKZO, pricing below cost would not be a decisive criterion to establish the abusive nature of a predatory pricing campaign. The Court rejected this approach and crafted a substantive test confining administrative action within a set of boundaries well-defined in advance. Post Danmark II raises, in my view, the exact same issues.
Intel has given rise to much excitement in the competition law community. No doubt it is a high-profile case where much is at stake. If you asked me, however, I would say that the pending preliminary ruling in Post Danmark II is more important for the future of Article 102 TFEU. For some reason, it has attracted relatively little attention (one notable exception is Luc Peeperkorn’s recent article, mentioned by Alfonso a few days ago). Now that the date of the hearing (26 March) is approaching, it makes sense to say a few words about it. From the outset, I have to thank Christian Bergqvist, from the University of Copenhagen, for his availability to discuss the background and some aspects of the case.
Some authors have claimed in the past months that the case law on exclusive dealing and rebates has the advantage of providing legal certainty. It is clear that exclusivity obligations and rebates conditional upon exclusivity are, absent an objective justification, unlawful under Article 102 TFEU. A qualified prohibition rule of the kind is undeniably easier to administer than a standard (a different story is of course that the former is less accurate and more error-prone than the latter).
What these authors do not always emphasise is that the case law would be easier to administer if it prohibited altogether, absent an objective justification, all other rebate schemes. Even easier to administer would be a rule allowing all rebates. The fact is that schemes that are not formally conditional upon exclusivity are, at least in principle, only prohibited where they are shown to be ‘loyalty-inducing’ (or ‘fidelity-building’). As explained by the GC in Intel, this is a matter to be established following an assessment of ‘all the circumstances’ relating to the rebate scheme in question. The lawfulness of these rebate schemes is, in other words, formally assessed in accordance with a standard.
Some standards are good and some are not. A good standard is one that is structured around a set of well-defined proxies and that is predictable for firms and easy to administer for courts and authorities. Bad standards, in turn, are unstructured and make it impossible for firms to anticipate the outcome of a particular case. Post Danmark II shows that the standard under which rebates not formally conditional upon exclusivity are assessed is closer to the second category. The criteria identified in the case law to determine whether a given rebate scheme is ‘loyalty-inducing’ do not provide the basis for an operational legal test that can be readily applied by national courts and authorities.
Post Danmark II is particularly interesting because it is about standardised rebates (this is explicitly mentioned in the preliminary reference). A scheme of that kind is in principle lawful under the case law. Quantity rebates apply in the same way to all customers and increase with the amount supplied and are thus presumed to reflect the cost savings made by the firm. Is that the end of the story? Does it mean that the scheme in question is compatible with Article 102 TFEU? Not really. We know, at least since Michelin II, that quantity rebates can be found to be ‘loyalty-inducing’ and as such prohibited. As in that case, the rebates in Post Danmark II are retroactive. Is the retroactive nature of the rebates alone sufficient to establish an abuse? An additional factor that was considered in Michelin II is the reference period considered for the award of the rebates. Are all rebates granted over a one-year period prohibited?
One can try and read and re-read the relevant rulings, but I am afraid that nothing in the case law clarifies how the abovementioned factors (some hinting at the lawfulness of the scheme, some suggesting a violation of Article 102 TFEU) are weighed against one another to establish whether, on the whole, a particular scheme is ‘loyalty-inducing’. The case law, in other words, does not provide a set of principles for the systematic assessment of the nature of rebate schemes. The different criteria have so far been considered in an unstructured way and in light of the facts specific to individual cases.
In practice, and in the absence of a legal test, it is sufficient for a competition authority (or a claimant) to identify some factors hinting at the ‘loyalty-inducing’ nature of the scheme to establish a violation of Article 102 TFEU. This is at least the lesson I draw from Michelin II and British Airways. As soon as any such factors are identified, an abuse is prima facie established and the burden of proof shifts. It is then for the dominant firm to show that the rebate scheme is economically justified.
EU courts, most recently in Intel, have repeatedly held that rebate schemes that reflect cost savings are compatible with Article 102 TFEU. Similarly, they have clarified that a case-by-case assessment is necessary for rebates other than those conditional upon exclusivity. The case law has not evolved in a manner consistent with these principles. In reality, and for all practical purposes, rebate schemes seem to be prima facie prohibited irrespective of whether they are formally conditional upon exclusivity. I would assume that it is uncontroversial to state that, where the law fails to capture the principles on which it is based, as is true here, it needs to change or at least be refined.
The reasons why the case law has moved away from its underlying principles are not a mystery. It has developed in the context of annulment proceedings, where the primary task of EU courts is to review the legality of administrative action. In such a procedural context the GC and the ECJ are, an analysis of the case law suggests, less likely to develop a substantive test that captures the principles against which the lawfulness of the practices in question is assessed. Unsurprisingly, they are more likely to focus instead on whether the analysis carried out by the Commission is sound and whether it supports the conclusions drawn by the authority.
The pending ruling in Post Danmark II shows that the case law, as it stands, does not provide meaningful guidance to courts and authorities in the era of decentralisation – remember there is a decision by the Danish competition authority at the origin of the case. The good thing about the case is that, as much as Post Danmark I, it is a unique opportunity for the Court to clarify the law in the area and to contribute to legal consistency. These are, after all, the very reasons why preliminary references are so important in the EU system of judicial remedies.
As you know, Pablo and myself -and Nico too- are quite involved in a Course on EU & Spanish Competition Law Course that I co-direct in Madrid with Luis Ortiz Blanco. Aside from being a great pretext for me to go home once in a while, the fact is that we are getting increasingly better at bringing good competition law action to Spain.
The two upcoming seminars are very good examples:
– On Thursday and Friday this week (5 and 6 March) we will be holding a seminar on State Aid coordinated by José Luis Buendía and Jorge Piernas which could hardly be better. I truly don’t think there’s a better way to learn all you need to know about State aid in 48 hours. In that time a list of top-notch speakers will cover all the essentials of State aid law as well as the most recent hot topics. Speakers include (by order of appearance): Jose Luis Buendía (Garrigues & King’s College London), Jorge Piernas (University of Murcia), Leigh Hancher (University of Tilburg), Piet Jan Slot (University of Leiden), Juan Arpio (University of Zaragoza), Deborah Heredia (Spanish Ministry of Foreign Affairs), Carlos Urraca (European Commission Legal Service), Joaquín Fernandez (DG Competition, European Commission), Alejandro Requejo (Compass Lexecon), Miguel García Caba (Spanish Professional Football League), Ramón Terol (University of Alicante), Juan Pedro Marín (SEPI); Elisabetta Righini (King’s College London), José Manuel Panero (Garrigues) and Patricia Vidal (Uría Menéndez). More info is available here.
12h –14h Competition, IP and technology
- Introduction to the EU copyright regime and to its reform, Eleonora Rosati, Lecturer, University of Southampton
- Copyright licensing and competition law – Pablo Ibañez Colomo, Associate Professor, LSE
- Competition law and IPR exhaustion– Alvaro Ramos, Legal Director, Cisco Systems
16h- 18.30h Competition law and distribution in the online world
- An introduction to competition law and online distribution- Donald Slater, Partner, Ashurst
- The economics of online distribution- Valérie Meunier, Vice-President, Compass Lexecon
- Emerging challenges for competition law in online distribution – Miguel Pérez Guerra, Competition Counsel EMEA, Google
- Emerging challenges for competition law in online distribution – Robert Mahnke, Global Competition Counsel, eBay
18.30h – 20h Setting the online playing field
- Competition law and online search- Thomas Graf, Partner, Cleary Gottlieb Steen & Hamilston
- The double duality of two-sided markets- Alfonso Lamadrid, Garrigues (yes, I’m repeating myself, but I have 3 Hearings in Luxembourg that week, and since I get to co-decide on the programme… ;) )
- The fluctuation of substantive standards in high tech markets- Pablo Ibañez Colomo, Associate Professor, LSE
More info on this seminar (which will be conducted fully in English and under Chatham House Rules) is available here: Seminar Competition Law in the Technology Sector
(by Giorgio Monti)
[Note by Alfonso: The US Supreme Court delivered last week an antitrust Opinion in North Carolina State Board of Examiners v FTC. We asked Giorgio Monti -whom we knew would be interested in the issues raised by the case- to write a comment for Chillin’Competition and he kindly accepted. Giorgio needs no introduction, but I’ll do a quick one: he’s one of the leading EU competition law professors, the author of this great book, currently holds one of the most envied posts in competition academia at the European University Institute in Fiesole, and, more importantly, he’s also a very nice guy. We leave you with him]
The quiet life of incumbents is often shattered by new paradigms – Uber’s controversial challenge to the taxi businesses of many countries is a colorful example of the synergy of technology and entrepreneurship doing battle with a rentier establishment. In the case at hand, the FTC saw something similar in a market for the vain: teeth-whitening services being offered by non-dentists at a price lower than the same services offered by dentists. The latter, using the State Board (the majority of which is made up of dentists), issued warnings to these pesky new entrants stating that the unlicensed practice of dentistry (including whitening of teeth) was a crime. Faced with such a potentially steep entry barrier, the new entrants abandoned the market. Is the conduct of the State Board an unfair method of competition under Section 5 of the Federal Trade Commission Act?
The answer to this question is more of constitutional law than antitrust. The anticompetitive effects are clear; the justification for this restriction on the basis of risks to health if teeth whitening was performed by non-dentists was not even pleaded on the facts; contrariwise, as the majority reports, complains to the State Board were based on the lower prices of the new entrants. Indeed it wasn’t even clear if it was true that the unlicensed practice of teeth whitening services was indeed a crime because the legislation did not include this service. And yet, in the world’s freest market, where under Federal Law the antitrust rules are compared to the Magna Carta, State laws may restrict competition, and there’s nothing (much) the Federal government can do about it. However, and this is the vital point which this judgment sheds light upon, such restrictions must be the result of state action for there to be antitrust immunity.
In briefest outline, this immunity (so-called Parker immunity after the seminal judgment) applies if the actor that restricts competition is either (1) the State acting in its sovereign capacity or (2) a private party, and then in this case only if (a) the restraint of competition is clearly articulated State policy and (b) that this policy is actively supervised by the State.
The State Board claimed that they benefited from immunity under the first limb of this doctrine because the Board had been created by the State. The bone of contention was how far this Board, created by the State (here under the Dental Practice Act) but populated by practicing dentists, merited immunity under that first limb. In the view of the majority, they did not: ‘A non-sovereign actor controlled by active market participants’ has to satisfy the second limb of the test and in this case it failed to do so because there was no active State supervision when the Board took the view that teeth whitening fell within its competences and that it was thus appropriate to send letters ordering non-dentists to stop offering teeth whitening services.
It follows that companies like Pro-Teeth Whitening, whose logo I used for this entry, might now re-open in Charlotte, North Carolina where it operated before the Board’s actions.
(1) The widening scope of Federal Competition Policy
The three dissenting Justices considered that more deference to State policies was warranted. Beneath the technical debates on whether the majority approach is consistent with precedent one gets a sense that the dissenting Justices are worried about departing from the original division of powers, so that the main bone of contention is about the constitutional balance being fixed rather than fluid. Thus the dissenters open by noting that State Dental Boards were always organized thus even before the Sherman Act. To Europeans this is a bit odd, because we know that we can use the TFEU precisely to challenge age-old practices. In Consorzio Industrie Fiammiferi the competition rules were used to challenge a 1923 Royal decree, for instance. To Europeans, competition law (and internal market law) applied to state conduct is a powerful crowbar to force states to rethink age-old restrictive practices. Of course some think this leads to neo-liberal oblivion, to others it shows we’ve got the most free market constitution in the world.
(2) Rules and Standards
The dissent felt, rightly, that the approach of the majority was also problematic because it would yield implementation problems. The rule-based approach supported by the dissent is easy to apply (Is the Board created by the State? If yes immunity) is a lot easier to apply to any case that may arise than the test of the majority (is the Board ‘controlled by active market participants, who possess singularly strong private interests’ such that there is a ‘structural risk of market participants’ confusing their own interests with the State’s policy goals’? If yes then immunity must satisfy the second limb of the Parker immunity doctrine). Is this a sufficiently strong argument to lead one to support the dissent’s view that the standard is unwieldy? I am optimistic that Federal courts will be able to find a way of testing how far the composition of the agency is sufficiently remote from the commercial interests the agency regulates. Moreover, even if we agree with the dissenting justices that ‘regulatory capture can occur in many ways’ is it not preferable to have a test that tries to challenge more of those occurrences, rather than fewer of them?
In oral argument, many of the Justices were troubled by the tension: surely the best way of regulating a profession is to ask professionals what to do (an example that was used is neurosurgery: surely nobody wants bureaucrats deciding on the best practices for neurosurgery). But this is to misread the debate. The FTC was not claiming that a regulatory board composed of self-interested experts is illegal. It is merely saying that if a State creates such a regulator, it has to actively supervise it and so the State has a duty to be the competition advocate and to ask the regulator to justify restrictive policies.
(3) Procedural Public Interest
North Carolina may still try and ban non-dentists by more direct involvement with the Board. As the majority said, if State can make a claim that an anticompetitive policy is the State’s own choice, then this suffices for antitrust immunity. No substantive test is needed to measure how far the harm caused by an anticompetitive market compares to the benefits of state regulation. The public interest, to recall Harm Schepel’s important paper (’Delegation of Regulatory Powers to Private Parties under EC-Competition Law: Towards a Procedural Public Interest Test’. (2002) 39(1) Common Market Law Review 31) is defined procedurally rather than substantively. Why so?
Perhaps doing this kind of comparison between consumer interests and producer interests is invidious (but isn’t cost-benefit analysis now so widespread?).
Perhaps States value what little residual sovereignty they still have over economic policy (spare a thought for Greece).
Or perhaps it all boils down to this: as the majority noted, if North Carolina wants to ban cheap teeth whitening services it may do so in a way that falls under Parker immunity. It will be for voters to then decide if this was the right policy choice. If so, here is a nice exam question: ‘Democracy can, and should, determine how free markets are. Discuss.’