Relaxing whilst doing Competition Law is not an Oxymoron

Archive for September 2009

Belgacom might have unlawfully abused a dominant position

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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).

Written by Nicolas Petit

29 September 2009 at 8:17 pm

New Book Out – Article 81 EC and Public Policy

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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.

Written by Nicolas Petit

28 September 2009 at 9:51 pm

New Website of the Belgian Competition Authority

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See here.

The new website looks very professional and the information is easily accessible. Much welcome initiative.

(Image possibly subject to copyright. Source:

Written by Nicolas Petit

27 September 2009 at 10:11 pm

Posted in Interesting Links

EC Competition Law as a Trade Protection Instrument?

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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)

Written by Nicolas Petit

25 September 2009 at 6:40 am

Posted in Uncategorized

Today’s Output

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  • 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)

Written by Nicolas Petit

21 September 2009 at 11:23 pm

Rarities – Commission Decision on Excessive Pricing

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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.

595px-Airport_Sign.svgThe 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)

Written by Nicolas Petit

20 September 2009 at 8:34 am

Posted in Case-Law

Opinion of AG Kokott in Alrosa is out

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cocotte-minuteSee 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?


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Written by Nicolas Petit

18 September 2009 at 12:32 am

Posted in Uncategorized