Relaxing whilst doing Competition Law is not an Oxymoron

On EU Competition Law Procedure

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Kluwer has just published Regulation 1/2003 and EU Antitrust Enforcement, a systematised article-by-article expert commentary on Regulation 1/2003, that also includes additional insights and critical views by a very impressive team of authors (featuring also some less impressive ones, namely Pablo and myself). The book has been edited by Kris Dekeyser, Céline Gauer, Johannes Laitenberger, Nils Wahl, Wouter Wils and Luca Prete.

I have already read various chapters in preparation for a 25 hour seminar on EU Competition Law Procedure that I start teaching today at the College of Europe, and it is a must-have for anyone interested in how EU competition law works in practice.

Luis Ortiz Blanco and I have authored the chapter on “EU Competition Procedure from the Perspective of Outside Counsel”, where we try to explain the beauty and the relevance of procedure from, well, the perspective of outside counsel. Kluwer has authorized us to post here the full text of our contribution. This is the introductory section:

“There is a hidden beauty to procedural matters. In a discipline as open and dynamic as competition law, substance tends to attract most of the attention. Many see substantive competition law as fertile ground to develop and debate creative theories but perceive procedure as a source of hurdles, dull tasks and deadlines regulated in black letter regulations or soft law instruments containing all relevant answers. From the perspective of outside counsel, this could not be further from the truth. Without procedure, substance is but abstraction. Procedure and substance live in symbiosis to the extent that the division between the two may not always be apparent.  At a time when, as we will explain below, the margin for substantive discussions in actual cases may be narrowing, procedural questions retain their interest. In practice, from the perspective of outside counsel, procedural questions are often the most interesting ones. While substantive competition law discussion may connect our discipline to economics, procedural principles and rules play a critical role in ensuring that competition law does not lose its last name.

There is also a hidden relevance to procedural matters. Procedural principles and rules have largely shaped the evolution of EU competition law, guided its application and contributed to its legitimacy and soundness. The evolution in EU competition procedures over the years has impacted, and in many ways even transformed, the nature of the work that outside counsel perform. In more immediate terms, procedural questions often determine the outcome of individual cases (‘It’s the procedure, stupid!’). This is particularly relevant to outside counsel. Unlike other repeat players, like competition authorities or courts, outside counsel are not bound by policy and consistency considerations but driven by a fiduciary duty to advance their clients’ best interests, generally within the context of a particular controversy. As outside counsel, both the nature and the measure of our work crucially depend on procedure. In what follows, we seek to explain how”.

To read the entire chapter (6 pages, you can handle that) and check out the full table of contents and authors, click on the link below:

Written by Alfonso Lamadrid

23 January 2023 at 9:30 am

Posted in Uncategorized

Unilever (case C-680/20) and the notion of undertaking (by Marcos Araujo Boyd)

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In a judgment delivered yesterday, the CJEU answered two questions referred by the Italian Consiglio di Stato. Understandably most comments have focused on the clarifications given by the Court in relation to the second question, concerning the obligation of competition to verify the capability of exclusivity clauses to exclude equally efficient competitors and to examine the economic analyses produced by the party in that respect, adorned with the perpetual question of whether the ‘as efficient competitor’s test must always be applied in these situations. That discussion clearly deserves attention; this post, however, is reserved to discussing the first and, at first sight, less relevant question of the Court’s approach to the ‘single economic entity’ doctrine.

The questions addressed in the Judgment concern the review of a decision of the Italian competition authority (Autorità Garante della Concorrenza e del Mercato or AGCM) of 31 October 2017. That decision declared that Unilever Italia Mkt. Operations S.r.l. (“Unilever”) abused its dominant position on the market for the distribution and marketing of ice cream to the operators of ‘out-of-home’ sales outlets through various mechanisms in breach of Article 102 TFEU, and imposed on that entity a fine of EUR 60 668 850.

For the purposes of the discussion on the ‘single economic entity’ doctrine, it is relevant to note that the AGCM Decision had imputed the conduct to Unilever, despite that the conduct (imposing exclusivity and a range of other alleged exclusionary initiatives) had been materially implemented by its distributors. The AGCM Decision justified this on the basis of a ‘single economic entity’ logic. In short, the AGCM declared that Unilever and its distributors were a single entity for the purposes of competition law (in the words of the AGCM Decision, ‘i concessionari e Unilever costituiscono un unico complesso unitario che adotta un univoco comportamento sul mercato’, see para 476 of the AGCM Decision and 9 of the Judgment).

One might wonder why the AGCM was bringing the notion of ‘single economic entity’ or undertaking to the table. In a way, that  was not entirely surprising; as discussed below in this post, the ‘single entity’ doctrine is commonly invoked for multiple purposes. In this case it appears that the fine was calculated based on the combined sales of Unilever and its distributors, so that may explain it. It could also be that the authority wanted to highlight distributors dependence on Unilever, probably to better justify imposing the fine only on Unilever and not on the distributors, and to avoid portraying the abuse as resulting from an exclusionary cartel formed by Unilever and those distributors. In the end, the AGCM drew an analogy between these intermediaries and the commercial agents whose activity the CJEU had attributed to their principal in Suiker Unie, a judgment expressly relied on by the AGCM Decision.

That logic however was not free from danger. Indeed, if the distributors and their supplier were treated as a single entity, their agreements might fall outside the scope of Article 101 TFEU. It would also be necessary to define the circumstances under which the cooperation between independent legal entities (leaving aside ownership control) would constitute such an economic entity.

In his Opinion of 14 July 2022 AG Rantos tried to address this matter with the classic tools crafted by the case-law. While being vocal about the difficulties of accepting that a contractual cooperation may give rise to an economic entity (and raising a flag about the risks of ditching the application of Article 101 TFEU to those structures), he seemed to accept that, in some limited circumstances, such reality might exist provided that there is a clear ‘unity of action in the market’ and that the leading entity can exert power over the other participants (amounting, in practice, to the ‘decisive influence’ standard), a fine line that the Court itself had suggested in VM Remonts with respect to subcontractors.

In yesterday’s judgment, the Court has adopted a very different perspective. Instead of looking at the matter from the viewpoint of the notion of undertaking or of the single economic entity doctrine, the Court has pierced the veil of the matter and exposed the real underlying question, which is one of attributability. Did the conduct of the distributors originate in Unilever? Did Unilever’s longa manu instruct the concessionaires to act as they did? Is it not true that, as the AGCM Decision notes, the distributors were implementing the purportedly abusive conduct through instructions and agreements drafted and imposed on them by Unilever? If so, should EU competition law not simply attribute the conduct to Unilever, without there being any need to apply the single economic entity doctrine?

Under that viewpoint, and after confirming that, in principle, contractual coordination would fall under Article 101 TFEU (para 26), the Court recognises that an undertaking may be regarded as being the perpetrator of that conduct (and, therefore, where appropriate, as being solely liable for it for the purposes of the application of Article 102 TFEU) where the distributors were  “merely an instrument of territorial implementation of the commercial policy of that undertaking and, on that basis, as being the instrument by which, as the case may be, the exclusionary practice at issue was implemented” (para 30).

More specifically, “the imputability to the undertaking in a dominant position of the conduct implemented by the distributors forming part of the distribution network for its goods or services is not conditional either on the demonstration that the relevant distributors are also part of that undertaking, or even on the existence of a ‘hierarchical’ link resulting from a systemic and consistent range of guidelines given to those distributors likely to influence the management decisions which they adopt as regards their respective activities” (para 32).

With these statements, the Court seems to have realised that the notion of undertaking does not need to be brought to assist in every situation where a ‘unity of conduct’ appears on the market, not even where liability is transmitted. For many it will seem obvious that this is the right solution. Let us, however. note that this was not the approach followed by the Court in multiple judgments, where that notion (and especially its first limb, the single economic entity doctrine) was brought in to support multiple propositions that arguably did not need it. By way of example, in the 1972 judgment in ICI, a building block on the construction of the notion of undertaking, the Court also confronted a situation where a parent company was using its subsidiaries as a mere tool, sending its affiliates ‘orders as to the prices which they were to charge and  other conditions of sale which they were to apply in dealing with their customers.  Instead of simply making the parent entity directly liable for its own acts implemented through others, the Court affirmed that the parent should answer under a ‘single entity’ logic.

Since then, the Court has used that notion to attain multiple objectives, including better articulating the calculation of sanctions, justifying expansive theories of succession, exempting from scrutiny the agreements within an economic group, or making parent entities liable regardless of their not being involved in the specific conduct under consideration. While many of these developments do require a solid theory of the undertaking, others do not. Sumal is arguably a good example. Instead of merely affirming subsidiary liability by reason of the involvemen of a subsidiary and articulating a clear and fitting theory of the ‘link’, the Court felt it necessary to bring to invoke the notion of undertaking, arguably quartering conglomerate economic groups in the way.

In today’s Judgment in Unilever it seems that the Court has not fallen to that temptation, and it should be commended for that. Let the notion be reserved to the situations where it is truly needed, and not as a Friar’s balm for every situation where an argument could potentially be strengthened by vague notions of a ‘unity of conduct on the market’.

The theory of the undertaking has enough challenges on its plate to deal with additional confusion.

Written by Alfonso Lamadrid

20 January 2023 at 11:49 am

Posted in Uncategorized

Procedural Fairness and the DMA: Some Comments on the Draft Implementing Regulation

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The European Commission recently released a 10-page, 12 article, draft Implementing Regulation on “detailed arrangements” for the conduct of proceedings under the Digital Markets Act (“DMA”). The Commission is inviting comments until 6 January. Here are some of mine:

1. On the importance of procedural fairness under the DMA. Under the DMA administrative action and discretion will not be as constrained by substantive rules as it is in other settings, including under competition law. In my view, the increased margin for administrative discretion requires the reinforcement of traditional procedural safeguards, not their relaxation. Procedural safeguards are not there to protect gatekeepers (or third parties), but to uphold the rule of law, and to protect the Commission too. Strong procedural safeguards would legitimize the DMA’s enforcement and ensure legally sound outcomes. When it comes to due process requirements, the EU should not be satisfied with minimum standards of protection.

2. The overarching tension between “expediency” and procedural safeguards. The draft reveals a constant tension, visible practically in every provision, between “the possibility for individuals to exercise their rights of defence and the expediency of the proceedings” (Article 10(1)). In my view, however, it is evident that these two interests do not rank at the same level. Rights of defence trump “expediency” considerations. According to the Oxford dictionary, by the way, “expediency” refers to “an action [that] is useful or necessary for a particular purpose, although it may not be fair or right”.

The CJEU has made very clear that:

the aim of promptness – which the Commission, at the stage of the administrative procedure (…) must seek to achieve – must not adversely affect the efforts made by each institution to establish fully the facts at issue, to provide the parties with every opportunity to produce evidence and submit their observations, and to reach a decision only after close consideration of the existence of infringements and of the penalties (see, with respect to the reasonable period referred to in Article 5(3) of the ECHR, Wemhoff, paragraph 17, and, with respect to Article 6(1) of the ECHR, Neumeister, paragraph 21)” (emphasis added).

A strong procedural framework would, moreover, not compromise the DMA’s objectives. Particularly in an ex ante system, one could expect enforcement to be exceptional, and necessarily limited in scope. Would it not make sense to adopt every precaution to ensure the “fairness” of those proceedings?

3. Omissions in the draft. The draft is silent on many respects (including, for example, with respect to the role of third parties, specification decisions under Article 6, certain aspects market investigations, coordination with national competition authorities, etc). I presume that some of that will eventually feature in a DMA ManProc. Some of those omissions may be understandably justified by the fact that Article 46 DMA empowers the Commission to adopt implementing acts covering only certain matters. While it is good to see that the Commission is strict about legal basis (ehem…), some further reflection on how to deal with existing shortcomings in the design and transparency of the DMA’s procedural rules would be most welcome. The Implementing Regulation could provide the Commission with an opportunity to correct or mitigate issues left out, or created, by the legislative procedure.

4. The “succinct” right to be heard. The draft envisages that addressees of preliminary findings should have the right to provide their views “succinctly”, “in writing” and “within a time-limit that should be set by the Commission with a view to reconciling the efficiency and effectiveness of the procedure, on the one hand, and the possibility to exercise the right to be heard, on the other” (recital 3).  But parties do not have a right to defend themselves “succinctly”; parties accused of an infringement have the right to defend themselves, whether succinctly or not.

5. Oral Hearings. In antitrust proceedings undertakings have a “right to an oral hearing” (Article 12 of Regulation 773/2003). This is not capricious; it is an essential procedural safeguard. The draft Implementing Regulation, however, does not envisage oral hearings, and it is not clear why (the answer, I suppose, is that adhering to procedural safeguards takes time). In my view, this is problematic. To be sure, there is established case law making clear that the right to a fair hearing does not necessarily imply a right to be heard orally, but it may in some settings. In CONSOB, for example, the ECtHR found that an administrative enforcement system (on securities regulation) not allowing for the holding of an oral hearing (even when the facts were contested and companies faced a risk of severe penalties) did not fully satisfy the minimum requirements of fairness and objective impartiality deriving from Article 6 ECHR.

In the recent Android judgment (admittedly, not my favorite ruling), the GC also held that “[h]aving regard to the importance, in the context of a punitive procedure in which an abuse of a dominant position is to be penalised, of holding an oral hearing, that procedure is necessarily vitiated by the failure to hold such a hearing, irrespective of whether (…) that that failure might have influenced the course of the proceedings and the content of the contested decision (…)”.

6. Access to the file. According to the draft Implementing Regulation, while addressees of preliminary findings “should always obtain from the Commission the non-confidential versions of all documents mentioned in the preliminary findings, the Commission should be able to decide on a case-by-case basis on the appropriate procedure for access to further documents in the file” (recital 3). This idea is developed in Article 8 of the draft Implementing Regulation. A few comments:

— Like in competition proceedings, undertakings would only have access to the file following the notification of preliminary findings. I suppose this means that designation decisions (which would not be preceded by preliminary findings) will only rely on the evidence transmitted by the would-be-gatekeeper. This is because designation decisions could arguably not be based on evidence previously unknown to the undertaking (e.g. information submitted by third parties) without breaching Articles 6 ECHR/ 41CFR.

— Pursuant to Article 8 (2) and (3) of the draft, access to documents is not automatic, and is in principle limited to “the documents mentioned in the preliminary findings as well as a list of all documents in the Commission’s file”; it would then be for the undertaking to duly substantiate why it would need access to specific documents in that list. The problem here is that this system might not enable undertakings to identify potentially exculpatory or otherwise helpful documents. Access to a document cannot, in my view, be dependent on whether the Commission chooses to refer to it in its preliminary findings or not, nor on the title that the Commission may choose for it. Established case law makes clear that ““it cannot be for the Commission alone to decide which documents are of use for the defence” (e.g. Solvay, para. 81; see also Qualcomm, paras. 199, 202-216).

7. Deadlines and extensions. Pursuant to Article 10(1), the Commission will set time limits having due regard to all relevant elements of fact and law and interests concerned, “in particular the possibility for individuals to exercise their rights of defence and the expediency of the proceedings”. Article 10(2), in turn, provides that, faced with extension requests, the Commission (who within the Commission if not a Hearing Officer?) shall assess “whether the requested extension is liable to endanger compliance with the applicable procedural time limits laid down in [the DMA]”. My comment 2, above, is transposable here.

8. Confidentiality. Article 7, on the identification and protection of confidential information, and Article 8, on access to the file, mainly codify current practice under competition law, including on how to resolve disputes as to confidentiality. It all looks good to me, except for the absence of any role for Hearing Officers (see below). Importantly, under Article 7(5), any comments on consultations by third parties (e.g. on remedies, non-compliance or systematic non-compliance decisions) will not be considered confidential. This might arguably save more time and administrative resources than many other of the proposals featured in the draft.

9. Hearing Officer. According to the Commission, the post of the Hearing Officer was introduced to “enhance impartiality and objectivity in competition proceedings before the Commission”. By the same token, the fact that the draft Implementing Regulation envisages no role for Hearing Officers implies that DMA proceedings would be less impartial and less objective than competition ones.

The argument that granting Hearing Officers a role would compromise speed is, in my view, spurious. First, the Commission recognizes that Hearing Officers are there “to contribute to the objectivity, transparency and efficiency” of proceedings”. Second, Hearing Officers’ role in merger proceedings does not appear to have been an obstacle to comply with tight deadlines. Third, their role under the DMA is particularly necessary precisely because time pressures may create the temptation for enforcers to be more “efficient” when it comes to respecting procedural safeguards.

10. Format and length of documents:

–Article 3(4) provides that the information submitted to the Commission “shall be presented in a clear, well-structured and intelligible manner”. Amen! This requirement should arguably feature in the Treaties and be tattooed in the forearms of every lawyer (and maybe, perhaps one day, extended to public documents too…).

–Annex II of the draft sets format and page limits (essentially 50 pages to discuss each core platform service “according to any plausible alternative delineation” in notifications, 25 pages for rebuttals, 30 pages for reasoned requests for suspensions and exemptions, and 50 pages for replies to preliminary findings. Not that I particularly care about page limits (shorter is often better and more effective), but will preliminary findings, for example, be subject to similar page limits? If not, would this create equality of arms issues?

–Also, since these limitations would appear to be inspired by the page limits applied by the EU Courts: do you know of any application or appeal that has ever been declared inadmissible by the EU Courts due to lack of compliance with page limitations? Well, there is a reason why you don’t, and it also has to do with fundamental rights.

–Article 4 of the draft Implementing Regulation states that the Commission will only allow derogations to page limits upon reasoned request and to the extent that the undertaking “substantiates that it is objectively impossible to deal with particularly complex legal or factual issues within the relevant page limits”. Read again: “objectively impossible”. To be granted an extension, one would need to prove a negative. “Objective impossibility” may appear to be somewhat of a high bar in this context; in fact, it is arguably objectively impossible for undertakings to meet.

11. Rebutting the gatekeeper presumption (a welcome backtracking?).  Pursuant to the DMA, undertakings who meet the quantitative thresholds in Article 3(2) will be presumed to meet the qualitative thresholds warranting a gatekeeper designation that are set out in Article 3(1). Oddly, the DMA provides that a gatekeeper presumption can only be rebutted by reference to the quantitative thresholds (DMA recital 23 and Article 3(5)). In my previous post on DMA procedure, I already expressed doubts about the legality of that limitation. The draft Implementing Regulation appears to be mindful of this problem:

Article 3(3) of the draft provides that the notifying parties wishing to rebut the gatekeeper presumption “shall (…) clearly identify to which of the three cumulative requirements set out in Article 3(1) its arguments relate (…)”. (?!) It would appear that, unlike the DMA itself, the Implementing Regulation would enable parties to develop their arguments by reference to the qualitative requirements ultimately justifying designations, instead of on the quantitative proxies. This is logical and welcome, and seemingly the opposite of what the DMA provided.

12. The “yes, but the DMA is not competition law” argument. You may perhaps be inclined to dismiss some of the comments above on the grounds that I’m looking at all this through a competition lawyer’s lenses when, in reality, the DMA is a different animal. But the very same reasons that justify the existence of certain procedural safeguards in competition law proceedings are equally, if not more, relevant under the DMA. Procedural guarantees and rights of defence do not depend on whether a given legal regime constitutes competition law or not; they depend on other factors, including the severity of the sanctions at stake, the institutional set-up and the jurisdiction’s commitment to the rule of law.

This is all for now. I hope these are constructive, as I acknowledge that it is a challenge for the Commission to set up a completely new procedural framework from scratch, in a rush, and based on the DMA’s text. Other comments may follow if time allows (but, to be honest, I hope to be doing other things during the Christmas period).

Happy holidays to all!

[P.S. I work for companies likely to be designated as gatekeepers, including for some directly targeted by the DMA. The views expressed in this post are strictly my own and have not been requested, nor paid for, by any client. At the time of publication, I have not discussed this post with any of my clients].

Written by Alfonso Lamadrid

22 December 2022 at 9:46 am

Posted in Uncategorized

LSE Short Courses 2023: Advanced EU Competition Law (April-May) | State Aid and Subsidies Regulation (May-June)

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The third edition (!) of the two Short Courses I organise at LSE Law School, one on Advanced EU Competition Law (April-May) and one on State Aid and Subsidies Regulation (May-June), will run again in 2023. These courses are part of the activities around the Jean Monnet Chair that I proudly hold.

The first two editions were a great experience. It was wonderful to discuss recent developments in law and policy with engaged professionals (civil servants, private practitioners, advanced students and even some academics) from around the world.

The two courses (16 hours each) run online and take place on Friday afternoon over four weeks (4 hours every Friday). They are also limited to around 25 participants to maximise interaction (and with a full house last year, interaction was definitely maximised).

With the two fields in a state of flux, this third edition could not be more timely. EU competition law is undergoing fundamental transformations (EU merger control, vertical agreements, abuse of dominance). State aid and of subsidies regulation will see the first steps of two major pieces of legislation (the EU Regulation applying to foreign measures and the brand new UK regime) in 2023.

The idea is to give you an updated account of the most recent developments and help you navigate them by putting them in the broader context and providing an analytical framework.

For detailed information on each of the two courses (including on the schedule of the sessions and on how to register), please click on the relevant webpage below:

Advanced EU Competition Law (Friday 21st April 2023, 28th April 2023, 5th May 2023 and 12th May 2023).

This course is designed with experienced competition lawyers and economists in mind (both working as officials and in private practice). It goes beyond the basics and provides the tools to think about the most recent case law and administrative practice. We will do so by reference to the fundamentals of the field. The short course is structured around four sessions on agreementsabusive practicesmergers and digital markets.

State Aid and Subsidies Regulation (Friday 19th May 2023, 26th May 2023, 2nd June 2023 and 9th June 2023).

Very few European institutions offer a dedicated module on State aid (let alone subsidies regulation). This short course is designed to fill this gap by providing a coherent and comprehensive framework. It welcomes participants who wish to expand the range of their expertise as well as postgraduate students who want to develop an understanding of the field. This short course covers the EU and UK regimes.

Both Short Courses will be delivered online again this year. The times remain unchanged: sessions will take place on Friday afternoon (2pm-6pm London time).

An LSE Certificate will be available upon completion, along with CPD points for practitioners.

If you have any questions about the organisational aspects of the two courses, do not hesitate to contact my colleague Amanda

Written by Pablo Ibanez Colomo

20 December 2022 at 1:29 pm

Posted in Uncategorized

AG Rantos in Super League and ISU: towards continuity and consistency in the case law

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Advocate General Rantos’ much awaited Opinions in ISU and Superleague were released earlier today (see here for the first and here for the second).

For experienced competition lawyers, the legal interpretation suggested in both Opinions does not come as a surprise. Advocate General Rantos proposes, in essence, to follow the case law. Accordingly, he invites the Court to set aside the General Court’s judgment in ISU, which, as explained here, departed from the said case law in some important respects.

Advocate General Rantos is also explicit about the rules laid down by the UEFA and the FIFA. He strongly implies that they are not in breach of Articles 101 and 102 TFEU insofar as they appear to be ancillary to a legitimate aim. This is true, in particular, of both of the pre-authorisation requirement to set up a rival tournament (such as the Superleague) and of the sanctions (or the threat thereof) that may come with the breach of this requirement.

The two Opinions taken together make three fundamental points about the relationship between competition law and sports governance:

  • First, the so-called conflicts of interest (that is, a governing body that has the power to authorise or prohibit competing ventures) are not, in and of themselves, problematic under competition law.
  • Second, the ancillarity of a restraint and the object of the said restraint are two separate stages of analysis that must not be conflated.
  • Third, the protection by a sports association of its economic interests is not anticompetitive in and of itself.

In any event, the two Opinions are a tour de force that provide a comprehensive analysis of the case law on object restrictions and on ancillarity: from vertical agreements (such as Maxima Latvija) to horizontal co-operation agreements (such as GøttrupKlim).

This overview shows that the issues underlying ISU and Superleague are relevant well beyond sports. Because the Opinions effectively address some common misunderstandings and remind us of the logic underpinning the relevant case law, they will provide helpful guidance in future non-sports cases.

International Skating Union: back to orthodoxy

The General Court’s judgment had given rise to some controversy insofar as it appeared to deviate from the relevant case law. Advocate General Rantos proposes to follow the orthodoxy. Doing so, in the specific circumstances of the case, means concluding that the rules at stake are not restrictive by object (and setting aside the first instance judgment).

Most readers will remember that the ISU case is, in essence, about a set of eligibility rules applicable to athletes taking part in competitions organised by the skating federation. These rules (of which there were variations over the years) amounted in practice to a non-compete obligation: taking part in unauthorised competitions came with sanctions for these athletes.

Advocate General Rantos rectifies the General Court’s analysis in a number of important ways. He points out, first, that the discretionary nature of the rules cannot lead to the conclusion that the object is anticompetitive. If anything, discretion might say something about the effects of the federation’s rulebook. The same is true of the severity of the penalties.

Second, Advocate General Rantos notes that the cases that were at the heart of the General Court’s analysis (OTOC and MOTOE) are not capable of substantiating the conclusions drawn from them at first instance.

In the first of these rulings (OTOC), the Court expressly held that the contentious rules were not restrictive by object; the second (MOTOE) was about State regulation, rather than a decision by an association of undertakings.

Third, and perhaps more importantly, the Opinion addresses the conflation, by the General Court, of two separate stages of analysis: objective necessity, on the one hand; and restrictive object, on the other. As explained by Advocate General Rantos, Meca Medina dealt with the ancillarity of sporting rules, and at no point did the Court hold that disproportionate rules are necessarily restrictive of competition.

Rules that do not satisfy the objective necessity test may or may not restrict competition. A conclusion in this sense requires, however, a case-by-case evaluation of their anticompetitive effects.

Superleague: the orthodoxy confirmed

The Superleague case concerns different angles of the same set of regulations laid down by FIFA and UEFA. The most relevant ones, in theory and practice, are those that have to do with the need to gather prior approval to organise a competition and the (threat of) sanctions for setting up a breakaway tournament.

In relation to these rules, Advocate General Rantos clearly suggests that they do not have a restrictive object. They appear to relate to legitimate sports-related objectives and therefore their adoption can be rationalised on pro-competitive grounds. As in ISU, the fact that the application of the criteria allow for some discretion or are not transparent and reviewable does not mean that their object is anticompetitive.

In addition, the Opinion lays down a comprehensive framework to evaluate whether or not the rules fall outside the scope of Article 101(1) in light of the ancillary restraints doctrine. Advocate General Rantos identifies four stages of analysis in this regard.

First, the objectives to which the rules relate must be legitimate. In the specific circumstances of the case, Advocate General Rantos has few doubts about the fact that the underlying objectives are not only legitimate, but relate directly to the so-called European model of sport.

Second, the rules must be inherent to the objectives pursued by the agreement (or decision by an association of undertakings). In this regard, Advocate General Rantos is explicit about the fact that both a pre-authorisation system and sanctions scheme appear to be objectively necessary to attain the objectives sought by FIFA and UEFA.

Third, the practical opeation of the rules. Advocate General Rantos engages with the closed nature of the Superleague and explains that, to the extent that it could undermine the legitimate sporting objectives sought, the non-recognition of the breakaway tournament seems inherent to the operation of the structure created by FIFA and UEFA.

Finally, proportionality. Even if it is ultimately for the referring court to deal with the matter, Advocate General Rantos signals strongly that sanctions against football clubs taking part in the Superleague (as opposed to the players themselves) would be proportionate. Crucially, he notes, again, that MOTOE is not the benchmark against which this criterion is to be assessed.

The analysis under Article 102 TFEU is not fundamentally different. It may be worth mentioning that, in the Advocate General’s view, the infrastructure around FIFA and UEFA would not quality as an ‘essential facility’ and that, even if it were qualified as such, a refusal to share it with breakaway teams could be objectively justified.

Written by Pablo Ibanez Colomo

15 December 2022 at 8:36 pm

Posted in Uncategorized

Structured Legal Tests, Effective Judicial Review and Missing the Trees for the Forest

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Issue 7 of this year’s volume of the Journal of European Competition Law & Practice was published a few days ago. It comes with several exciting pieces, including a fascinating one on cartels (see here) by Carolina Abate (OECD) and Alexis Brunelle (Autorité de la concurrence). Carolina and Alexis take an interdisciplinary perspective on cartel formation and suggest that male dominated informal networks (the proverbial ‘boys’ clubs’) could explain cartel conduct.

This time around, I contributed an editorial to the issue (the editorial is available for free here). It addresses a question that has kept me busy in the past few months, namely judicial review in EU competition law and how it relates to substantive law.

We all agree that effective judicial review is an imperative in competition law regimes. What is less appreciated is that effective judicial review does not necessarily emerge in every system. It is the consequence of conscious choices made by courts, which allow for the meaningful scrutiny of administrative action.

In particular, whether or not judicial review is effective depends on how substantive law is interpreted. The EU courts have consistently expressed a preference for structured legal tests, which define a fixed set of conditions against which the lawfulness of Commission decisions can be assessed.

From the early days to the most recent developments, examples abound in the case law. The tests laid down in AKZO and Airtours are examples that come to mind immediately. The trend has continued to this day. It is sufficient to think of the five factors identified by the Court of Justice in Intel to realise the extent to which EU judges are attached to legal tests with definite boundaries.

This preference is easy to rationalise. Effective judicial review is difficult when tests are ‘liquid’ and/or unstructured (that is, when the applicable conditions are allowed to vary from one case to the next). In such instances, the control of administrative action would inevitably be confined to manifest errors. The law, in effect, would be delegated to the authority.

The above said, I can see the appeal of ‘liquid’ or unstructured legal test. They allow for greater flexibility and sometimes might be more accurate. If a practice is very obviously unlawful, is it really necessary to show that every single one of the conditions is met?

This position, the point of which I see, risks missing the trees for the forest. The conditions set out in legal tests are typically the crystallisation of decades of experience, not capricious hurdles.

For instance, we have long understood (and the Court has emphasised the point since Delimitis) that a practice is incapable of having actual or potential anticompetitive effects if the coverage is insignificant. Therefore, it would make little sense to ignore this factor (or pretend it is not relevant) in a particular case.

I see the value of flexibility and accuracy. This said, competition law is so exciting precisely because it requires authorities and courts to balance these aspirations with the need to ensure that the system is administrable and predictable. We should therefore aspire to minimise enforcement errors, but we will never be able to avoid them altogether (and that, if there was any doubt, is fine).

I would very much welcome your comments.

Written by Pablo Ibanez Colomo

9 December 2022 at 12:49 pm

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Solid vs liquid legal tests in EU merger control: my thoughts at the Fiscalía Nacional Económica’s Competition Day

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Chile’s Fiscalía Nacional Económica needs no introduction. It is an inescapable reference in the competition law landscape. It was a real pleasure to take part in their Annual Competition Day, in an event that symbolically marked the end of Ricardo Riesco‘s successful tenure as Fiscal.

Francisca Levin, head of the merger division at the Fiscalía, run a panel on recent developments in the field, in which Ryan Danks (US Department of Justice) and myself shared our thoughts on a number of merger-related issues.

You can find a transcript of the whole exchange (in Spanish) here. You will see that we covered a great deal of ground, from the jurisdictional to the substantive (these are particularly interesting times for EU merger control).

The question that piqued Francisca’s and Ryan’s interest was the debate about the nature and scope of the SIEC test (this, in fact, is something that has recently been front and centre of discussions in Chilean competition law).

I tried to frame the legal issue as involving a choice between solid and liquid legal tests.

I explained that there are essentially two schools of thought regarding the scope of the SIEC test in EU merger control. Beneath the technicalities, this is the existential issue at stake in CK Telecoms.

One school of thought prefers what I term ‘liquid’ legal tests, that is, legal tests that lack definite boundaries and that do not prescribe a set number of conditions to consider in a given case. There are, instead, a number of factors that may or may not be relevant in a particular context.

The other school of thought prefers ‘solid’ legal tests, which define a fixed number of criteria against which the legality of administrative action is assessed, and which do not vary. As a result, agency leeway is more constrained.

The former approach favours accuracy and flexibility; the latter, predictability and administrability.

Which of the two will ultimately be embraced is, I told Francisca and Ryan, one of the most exciting pending issues before the Court of Justice.

Written by Pablo Ibanez Colomo

2 December 2022 at 12:47 pm

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My interview with Global Competition Review

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A few days ago, Global Competition Review issued the first edition of its survey of antitrust academics. As you can see here, it features 25 scholars working on the legal, economic and management dimensions of our field.

It was a pleasure to share some thoughts on the direction of competition law and policy and even more of a pleasure to discuss, for once, issues that wholly unrelated to antitrust (or indeed the law). Global Competition Review has been kind enough to allow me to reproduce the interview on the blog (tip: scroll to get to the non-legal stuff).

What is the next academic “frontier” for antitrust law or economics?

The implementation of complex remedies is the most obvious challenge for authorities in the next few years. Traditionally, a decision finding an infringement was the end of a case for a competition authority. No longer. Enforcement, in particular in digital markets, is far more ambitious. Agencies are now far less reluctant to engage in the sort of far-reaching intervention from which they shied away for decades. They do not hesitate to interfere with the design of products, to question the core of firms’ business models or to deal with exploitative conduct. These cases are inevitably more complex and demanding, and this in a number of ways. First, the authority must design (or at least approve) an appropriate remedy, typically in the form of a positive obligation (and not just a cease-and-desist order). Second, this remedy must be subsequently implemented and monitored. As a result, uncertainty may extend well beyond the date when the decision finding an infringement is adopted. Some recent cases involving Apple and Google go to confirm this point: disagreements about whether the remedy, as implemented by the firm, brings the breach to an end can go on for years.

Our community is only starting to realise how much this kind of ambitious enforcement is transformative. Competition law has been, for a long time, about establishing infringements, the remedy being, if at all, an afterthought. If this trend continues, the discipline, and debates in the field, will revolve primarily, if not exclusively, around remedies. At present, our field is imperfectly equipped to deal with this shift in the centre of gravity. It seems to me that the legal framework will have to be adjusted and a new kind of expertise developed.

What is the most important academic debate currently taking place within the competition community?

I would say that the most important debate is the one that is not taking place (and that, if you ask me, should be taking place). Until the beginning of the 2010s, there was wide consensus about what makes competition law legitimate: it was all about process. I mean process in a wide sense, as encompassing not only procedural aspects but also the substantive and economic side of things. Whether or not intervention is justified in a given case would follow the process, under this approach. It would all depend on whether the theory of harm matches the facts of the case, whether the economic and legal context has been considered in its full complexity and whether agency action remains within the boundaries of what is allowed by law. Under this understanding of competition law, review courts are central: it is for them to check whether process has been followed.

Things are now changing. It would seem that, for many, what makes competition law legitimate is not whether the appropriate process has been followed, but whether the outcome that is deemed desirable is reached. Competition law would then be legitimate where it produces a particular result (typically, a finding of infringement). Under this novel understanding, competition law would not be ‘fit for purpose’ if, for instance, it leads to the finding that a practice implemented by a digital platform is incapable of restricting competition, or that it is on the whole procompetitive. By the same token, judicial review is seen with suspicion. If a court comes to the conclusion that the agency had erred in law or fact, it is deemed an obstacle to enforcement, rather than as a safeguard.

People will of course have different views about the wisdom of this shift. What matters is to acknowledge the shift is underway and discuss its consequences.

Which competition agencies (if any) are pushing the boundaries (rightly or wrongly) of antitrust law or economics the most and why?

Allow me to mention, first, that it is not wrong for a competition agency to test the boundaries of its powers. It is what they are expected to do and what they should do. The flipside, of course, is that courts may conclude that their analysis in individual cases goes beyond what the law permits. The European enforcement model is more conducive to agencies testing the limits of the discipline. Add to that excellent, well-trained staff and the experience acquired over decades and you get the ideal mix. I have followed with a great deal of interest what the French Autorité de la concurrence and the Italian AGCM have been doing (the latter’s decision in Android Auto and Amazon are most intriguing). I also look forward to the outcome of the European Commission’s investigations into Apple’s practices, as they hint at novel interpretations in more than one way.

Most important academic paper or book you’ve written and why?

The Shaping of EU Competition Law, published by Cambridge University Press in 2018, is, I believe, my most important work for several reasons. First, because it crystallises my thoughts of several years. It is in a way the culmination of a path that started with several shorter pieces. Second, because it is also quite ambitious: I compiled a comprehensive database of all Commission decisions and all EU courts judgments. Third, because it is a more mature piece of work than my PhD (which gives me the hope that my best research is yet to come!).

Most important academic paper or book you’ve read and why?

I admire many competition law scholars, but I will go for Marc Galanter’s classic Why the Haves Come Out Ahead. It is, I believe, a must-read for any legal academic. It encapsulates what we could contribute to society (and we should all aspire to do as scholars). It addresses an important problem (the limits of legal change and the factors that explain why the powerful get their own way), adds to our understanding of the world and creates a meaningful framework for addressing it.

Is corporate capture undermining the integrity of academic research?

It is very important to be aware of the risk of capture, but I believe that this risk has been somewhat overstated (at least in Europe, which is what I know well). The community has reacted effectively and put robust mechanisms in place. By and large, claims of academics being captured should be taken for what they are, more often than not: just another corporate strategy to advance some stakeholders’ interests.

Do you accept paid work from private companies?

No, and never will. I am happy to explain why. Us academics are the most privileged people in this community. We are paid by our institutions literally to think and write. I believe this status comes with a duty to avoid actual or potential conflicts of interests, provided that our personal circumstances allow for it. And my personal circumstances happen to allow for it. I am immensely fortunate to have a secure, well-paid job at a leading institution. Plus, I do not have extravagant hobbies and have a habit of reminding myself of how lucky I am.

What are your hobbies outside of academia?

As said above, my hobbies are not extravagant. I enjoy running and reading non-competition stuff (Amélie Nothomb’s Premier Sang and Irene Vallejo’s El Infinito en un Junco, both widely translated, are the highlights of this year). I also enjoy cycling, hiking and trying vegan places with my partner (if you happen to be in London, we recommend Sazzy & Fran for breakfast/brunch, En Root for lunch and great music as well as What the Pitta for a cheeky takeaway).

Written by Pablo Ibanez Colomo

25 November 2022 at 10:49 am

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The notion of abuse after the Android judgment (Case T‑604/18): what is clearer and what remains to be clarified (II)

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Following my first post on the Android judgment, in which I addressed some of the issues that have become clearer after the General Court’s analysis, here is the second part, discussing those where further clarity will be needed. As ever, I really look forward to your comments (and, as ever, nothing to disclose).

What needs to be clarified after the Android judgment

The point at which an anticompetitive effect can be said to exist.

As mentioned in the first post, the judgment is valuable in that it confirms what an effect is not. It is not just a competitive advantage, and it is not merely a limitation of a firm’s freedom of action. If these factors alone are not enough, what is the point at which an anticompetitive effect exists? How to differentiate it from a mere competitive disadvantage? This is one of the issues where the Android judgment fails to shed enough light.

Suffice it to focus on the MADA aspects of the decision to illustrate this idea. The judgment covers at length the main competitive advantage identified by the Commission, namely the ‘status quo bias’ from which Google’s products would benefit and which would derive from the pre-installation of these products in smartphones.

Claims of ‘status quo bias’ raise a number of factual questions, in particular whether rival applications can be pre-installed alongside Google’s (thereby nullifying any competitive advantage) and how pervasive pre-installation was.

What matters, in any event, is that the ‘statu quo bias’ is as such insufficient to show that a practice leads, or has the potential to lead, to foreclosure. Decades of experience – including in technology markets – show that even a significant competitive advantage does not necessarily result in exclusion and that it may well be compatible with thriving competition (one needs to look no further than the Microsoft/Skype decision).

In this regard, the judgment does not offer anything by way of an approach to distinguish between advantage and effects within the meaning of the case law. It touches upon the issue, but ultimately leaves it open and unaddressed (see para 565, which ends up speaking of a ‘significant competitive advantage’). This is one of the blind spots that will hopefully be explored in the near future.

This point is not a minor or esoteric one. The development of a comprehensive toolkit to evaluate anticompetitive effects (and tell them apart from mere competitive advantages) is a necessity if the assessment is to be meaningful. In the absence of effective analytical tools, establishing foreclosure would be a mere formality, not an actual informed scrutiny of the impact of potentially abusive conduct in the relevant economic and legal context. It would be sufficient, in practice, to point to a competitive advantage.

As things stand, a toolkit exists, but only in relation to some practices. As a result, distortions will persist unless the issue is directly addressed by the EU courts. If gaps remain in the case law, the evaluation of anticompetitive effects will only be meaningful for some categories of conduct, not others. The meaning of foreclosure – and the nature and depth of the scrutiny – would therefore vary depending on the practice. It would be difficult to justify or rationalise this reality.

As far as price-based conduct is concerned, for instance, the EU courts already rely on an operational toolkit (including the ‘as efficient-competitor test’). As a result, the potential impact on competition can be meaningfully ascertained. In addition, the coverage of the behaviour has emerged, since Intel, as a helpful tool with regard to both pricing and non-pricing strategies, and it has proved particularly illuminating in some recent cases.

The Android judgment shows that an operational toolkit is missing in relation to other conduct, including tying. As a result, there is some way to go to achieve consistency within Article 102 TFEU case law (and, indeed, EU competition law at large – for instance, it has long been acknowledged in EU merger control that a significant competitive advantage is insufficient to establish foreclosure).

The benchmark against which effects are assessed

One of the reasons why this case is so fascinating is that the but-for world (the famous counterfactual) is not straightforward to establish. This is so for at least two reasons.

First (and as mentioned above), the practices at stake in the case create competition, in the sense that they sustain an ecosystem that provides opportunities for rivals to expand their business. Second, it is far from clear that alternative monetisation strategies would have given rivals more opportunities to thrive (look no further than the iPhone to realise what may happen when other business models are relied upon).

In the specific circumstances of the case, accordingly, it may well be that, in the absence of the contentious behaviour, there would have been less, not more, competition. If this is so, it would not be possible to argue that the practices have exclusionary effects. If it appears that they allow for more competition relative to the counterfactual, they fall outside the scope of Article 102 TFEU.

Fascinating as this issue may be, it was avoided by the General Court. Even though it concedes that the Android platform is pro-competitive, in the sense that it opens opportunities for rivals, it fails to consider the counterfactual.

In paras 587-596, the judgment merely points out that the Commission decision only challenged some aspects of Google’s monetisation strategy, not the business model as a whole. Which, if there was any doubt, does not address the question of what the conditions of competition would have been in their absence.

The attributability of anticompetitive effects

It is well-established case law that the effects of a practice must be attributable to the contentious practice for Article 102 TFEU to come into play. In other words, there must be a causal link between the behaviour and the impact on competition. In many respects, Android provides an ideal scenario in which to test the question: are Google’s market shares the result of its conduct or are they the consequence of the fact that its products are superior?

Inevitably, these questions emerge in the case, but, again, there is no definitive answer from the General Court. It is worth reading paras 546-558 and 570-584 in this regard. The judgment describes the evolution of market shares and explains that other competing applications are not downloaded by users. Whether or not the observable consumer behaviour can be attributed to the conduct is not something that is addressed directly.

In fact, the General Court notes at some point (para 574) that the figures outlined in the judgment are in themselves sufficient to establish harm. In this sense, the judgment suggests that attributability may be established by proxy. It remains to be seen whether this is enough to show a causal link between conduct and effects.

Written by Pablo Ibanez Colomo

3 November 2022 at 6:57 pm

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Book launch at UCL Laws (2nd November, 6pm): Courts, Regulators and the Scrutiny of Economic Evidence (by Deni Mantzari)

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This is yet another post (like Wednesday’s) on the judicial review on administrative action. This time around, I write to celebrate the publication of Despoina (Deni) Mantzari‘s wonderful monograph on the topic and to invite you to come along to the book launch next week (2nd November, 6pm) at UCL Laws.

Information on the book launch, and on how to register, can be found here. We will be discussing Deni’s amazing achievement alongside the following confirmed speakers:

Peter Freeman, CBE, QC (Hon), (former Chairman of the UK Competition Appeal Tribunal)

Dr Andriani Kalintiri, (Senior Lecturer in Competition Law, King’s College London)

Joe Perkins, (Compass Lexecon, former Chief Economist at Ofgem)

Dr Christel Koop, (Reader in Political Economy, King’s College London)

Prof. Ioannis Lianos, (President of the Hellenic Competition Commission, UCL, Chair)

Written by Pablo Ibanez Colomo

28 October 2022 at 11:54 am

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