Archive for September 2009
Belgacom might have unlawfully abused a dominant position
The Belgian college of prosecutors has issued a Report which concludes that Belgacom is guilty of unlawful margin squeeze. See here for more (in French).
New Book Out – Article 81 EC and Public Policy
Chris Townley has just published a promising book entitled “Article 81 EC and Public Policy” (Hart Publishing). I paste below the author’s description of his book.
The book explains how some of the most complex competition law cases can be understood. It also offers a framework for those fighting or deciding such cases in the future. The argument comes in three parts. First, from a theoretical perspective, Part A discusses whether public policy considerations (such as public health or the environment) should be considered in European competition law. Contrary to the mainstream view, it concludes that this should sometimes happen. Then, Part B shows that, surprisingly for some, the ECJ/CFI and Commission regularly consider public policy in both Article 81(1) and 81(3) EC. I also explain how these decision-makers do this (including by distorting the consumer welfare analysis). Finally, Part C notes the incoherence of the case law described in Part B, and suggests ways to consider public policy that are more in line with the EC Treaty and also respect competition policy’s integrity. As such, it will be of interest to European competition lawyers, both academics and practitioners (furnishing them with a framework for hard cases), as well as students, seeking a deeper understanding of how the European competition rules work and how they interact both with European Union and Member State public policy goals. It will also help competition economists by revealing the mechanisms through which public policy considerations impact upon the consumer welfare test in European law.
Happy to do a review, if the publisher sends me a copy. And congratulations to the author.
New Website of the Belgian Competition Authority
See here.
The new website looks very professional and the information is easily accessible. Much welcome initiative.
(Image possibly subject to copyright. Source: http://forum.belmont.edu/cornwall/we-have-moved.jpg)
EC Competition Law as a Trade Protection Instrument?
This is the claim made my 22 US Congresmen in a letter (see FinalSignedLetters) adressed to the US AAG, Christine Varney. An excerpt:
As you know, the EC ruled last month that Intel Corporation violated its competition law, but failed to cite evidence of actual consumer harm in its ruling. That ruling is the latest evidence of a troublesome trend in Europe toward regulatory protectionism. Other successful US technology companies – such as Microsoft, Qualcomm, Google, and IBM – have either faced significant fines, are under investigation, or reportedly are being scrutinized by the Directorate General of Competition (DG Comp) as a consequence of their successes
Now, there is an issue that this letter somewhat overlooks. Most of those cases originate from firm’s complaints, often lodged by rival US companies. To me, those cases look rather like attempts by firms that have lost the market battle, to regain a competitive advantage through regulatory procedures/judicial action. Preston Mc Afee and Nicholas Vakkur have written a great paper on this issue: “The strategic abuse of the antitrust laws”, Journal of Strategic Management Education, Vol. 2, no. 1, 2005. And of course, DG Comp should refrain from following suit, on pain on disturbing the free market process. In addition, one may ponder whether DG Comp, and other regulators, are “ideally-placed” (in line with the wording of Reg 1/2003 and the applicable notices) to deal with issues that primarily involve US firms. A final issue that is clearly overlooked by the letter: there is no European industry to protect from Intel, Microsoft, Google, and the likes…
For more on” strategic” complaints, see here.
(Image possibly subject to copyright. Source: Flickr)
Today’s Output
- At last, the Intel decision is out. Until today, Commission officials had presented this decision as THE foremost illustration of the new effects-based, economic, approach. Now, at least, we can check whether that’s true. At first glance, the huge amount of intent-related evidence that is relied upon by the Commission to establish an infringement seems to call for a little more nuance.
- I just posted on ssrn a new paper on the effects-based approach pursuant to the Guidance Communication. The paper should appear in December in World Competition. Much to my dismay, I will have to update it in light of Intel, and go through the scarry 518 pages Commission decision.
- Seminars on antitrust law. See here for the 2009-2010 season of the “Mardis du droit de la concurrence” and below for a lunch seminar on penalties for antitrust infringements (with. W. Wils, Commission and King’s College).
(Image possibly subject to copyright. Source: Wikipedia)
Rarities – Commission Decision on Excessive Pricing
In searching through rejected complaints on the Commission’s website, I excavated a decision which, once more, witnesses the Commission’s reluctance to uphold excessive pricing claims.
In AIA SA and Olympic Fuel Company SA, the complainants alleged that the Athens international airport (Spata) imposed, amongst others, excessive taxes on passengers, charges on air companies, parking fees on travellers, etc.
The Commission bluntly dismissed the complaint, alluding to the burdensome nature of investigations into alleged excessive pricing strategies ( §43 “the efforts required in the present case to establish with certainty the existence of the alleged infringements would be disproportionate … in light of the significance of these alleged infringements as regards the functioning of the relevant market“). Also, the Commission’s decision illustrates the challenges of finding appropriate benchmarks with a view to perform price comparisons accross countries/services (See notably, §§84-89).
Source: Case COMP/D3/38469, 2 May 2005.
(Image possibly subject to copyright. Source: wikipedia)
Opinion of AG Kokott in Alrosa is out
See below for the text.
And an open question: Is there still a point in challenging Article 82 EC decisions before the EC Courts, but for creating unhelpful case-law?
Image possibly subject to copyright. Source: http://www.outils-cuisine.fr/img/cocotte-minute.jpg
The End of Lawyers?
In a forthcoming book, Richard Susskind predicts the end of lawyers. A few good quotes of Chapter 1, extracted from the Times online:
These articles will point to a future in which conventional legal advisers will be much less prominent in society than today and, in some walks of life, will have no visibility at all. This, I believe, is where we will be taken by two forces: by a market pull towards commoditisation and by pervasive development and uptake of information technology. Commoditisation and IT will shape and characterise 21st century legal service.
Against this backdrop, I should be honest about one issue from the outset. I do not believe lawyers are self-evidently entitled to profit from the law. As I have said before, the law is not there to provide a livelihood for lawyers any more than ill-health exists to offer a living for doctors. Successful legal business may be a bi-product of law in society, but it is not the purpose of law.
…
I will argue that the market is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem-solving and more) that can equally or better be discharged, directly or indirectly, by smart systems and processes. It follows that the jobs of many traditional lawyers will be substantially eroded and often eliminated. At the same time, I foresee new law jobs emerging which may be highly rewarding, even if very different from those of today.
…
My scepticism here should be evident. No lawyers should feel exempt from assessing whether at least some of their current workload might be undertaken differently in years to come. And no lawyers should shirk from the challenge of identifying their distinctive capabilities
(Picture possibly subject to copyright, the four horsemen of the apocalypse, source: http://eastwoodclint.free.fr/clint_mystique/apocalypse.jpg )
Where to find the Fiesole Papers on EC Competition Law
Each year, the vicinity of Florence (It.) becomes THE place to be for antitrust experts.
The venerable city of Fiesole indeed hosts a prestigious closed-door seminar on EC competition law and economics, under the supervision of C-D. Ehlermann.
Whilst the papers presented at this seminar are subsequently published by a law publisher, it often takes a while for the book to be available.
The good news is that all the draft papers prepared ahead of the seminar are available on line. I just discovered the link. An absolute mine of information.
Image possibly subject to copyright (source: http://www.travelplansintl.com)
The horrors of PowerPoint
See here.
I tend to share the viewpoint that slides do not necessarily make a good speech.
The article does not mention, however, that busy speakers often try to sell “back of the enveloppe” presentations as a surrogate for drafting a paper ahead of a conference (the typical reply being, “Apologies, I cannot write a paper for the conference, but I will come with some slides…“).
Chillin'Competition 
