Archive for November 2010
An intellectual somersault??
While reading last Friday an article written in a Spanish newspaper by Jesús Alfaro (who, by the way, has sometimes made comments on this blog), I came accross a reference to a Wall Street Journal piece that looked interesting. I checked it and thought that it illustrates pretty well the way in which EU competition law is perceived by many in the US. Check out this excerpt:
“So if you, as an executive, were to be so foolish as to ask your in-house counsel whether a particular action might run afoul of the EU’s increasingly complex and draconian competition regulations, both your question and your lawyer’s answer would become potential evidence against you.
Yet in the sort of intellectual somersault for which European competition law has become notorious, the Court declared that its ruling would not undermine businesses’ rights of defense. That’s because, according to the Court, “the rights of the defence is a fundamental principle of European Union law,” enshrined both in case law and in the Charter of Fundamental Right of the European Union.”
Aside from the fact that the second paragraph does not make much sense, the article reveals a misconception of EU competition law that I´ve observed many times in the recent past, particulalry on the other side of the pond. Antitrust/competition law is admittedly an area where legal certainty is sometimes the exception rather than the norm. However, are there really any reasons why EU competition law could be considered more of an”intellectual somersault” than its US counterpart? I truly don´t see them.
What’s wrong with French Politicians?
You liked the Alstom saga?
You loved President Sarkozy’s assault against article 3(1) g) EC?
Now you will surely adore the latest anti-Brussels protests voiced by the French government. Yesterday, several French Ministers lambasted the Commission’s decision in the air freight cargo case as “disproportionate“. Air France was fined €380 millions.
50 years after the entry into force of the EU Treaty, the declarations of those politicians – who seem to have just discovered the existence of EU anti-cartel provisions – are pathetic.
Beyond the ridiculous political gesticulations, a number of other things strike me as odd. After all, the victims of the cartel (air freight cargo customers) include probably a large number of French companies. Rather than siding here with Air France, the Government could have congratulated the Commission for protecting the interests of French customers. Yet again, French politicians decided to play Brussels v. Paris.
But there’s even worse. Buckle up and seat tight: the European affairs minister argued that the decision was discriminatory. Believe it or not, the alleged discrimination lies in the fact that some companies got off the hook in exchange for cooperation with the Commission. Obviously, our chap needs a crash course on leniency. Happy to offer my services (there is obviously no discrimination, as long as all companies can in principle equally receive immunity in exchange for cooperation). For more, see the post hereafter by Jean Quatremer (in French).
In the same vein: François Lévêque has sent us last week a paper about the new French electricity act. According to the author, this Act is (i) detrimental to competition; (ii) entails heavy handed State regulation; and (iii) is prone to regulatory capture and rent seeking behaviour. Scary. See link hereafter.
The Least Well Kept Draft Competition Text
Lucky me, I have seen the latest version of the mammoth draft horizontal guidelines currently circulating within the Commission.
The text comprises:
- 95 pages(!)
- Loads of examples
- Some wording on standardization agreements. The draft also dedicates two §§ to the methods for assessing whether IPR fees are FRAND or not (they refer in particular to the ex ante v. ex post comparison method)
- A full section on information exchange agreements, with an appreciable reference (in a footnote) to Airtours and Impala
Looks promising. My only concern is elsewhere. Environmental agreements are no longer discussed in a stand-alone section, but are now part of the section on standardization agreements. With the increased influence of green propaganda ideas, I am surprised that Brussels officials did not actually decide to give more exposure to environmental agreements.
A thought on the Commission´s Air Freight Cartel Decision
As we announced last week , the Commission adopted its decision in the air freight cartel yesterday.
From a policy standpoint there´s one thing that strikes me:
The Commission has fined 11 companies, and all of them (except for Singapore Airlines) have been granted reductions pursuant to the Leniency Notice. At the same time, the Commission has left out of the Decision a significant number of airlines which had been included as addressees of the Statement of Objections. “Coincidentally”, the ones left out are the ones which had not asked for leniency (my guess is that many of them would´ve done it and didn´t because ten other airlines were ahead of them).
In my view there were many reasons for excluding some of the airlines from the decision. I´m also conscious that adopting a decision such as this one with regards to more than 20 companies would have implied a hell of a lot of work. However, and from a policy standpoint, what message does the fact that only leniency appliccants have been sanctioned convey to future potential leniency applicants? Isn´t the Commission shooting its own foot?
(For full disclosure: I participated in the case in representation of a company which is not amongst the ones fined. It´s one of those for whose exclusion there were good reasons).
Four Years as the Chief Competition Economist
Feel like having a beer with attending an evening talk of the Chief Competition Economist?
The GCLC will have its third evening policy talk on 23 November 2010 (Marriott Brussels). See hyperlink below for registration form. Tickets will be granted on a 1st come/1st served basis.
GCLC – 3rd Evening Policy Talk – Damien Neven – Four Years As The Chief Competition Economist
Gerber goes Global
Back in the day, D. Gerber (University of Chicago) made a great job at describing the historical roots of the EU competition system and its inner theoritical logics.
More than ten years after, his book is still available for 265$ on Amazon.
If Gerber’s new piece is as influential as the first, it will surely win whatever competition prize exists and, very importantly, collect huge royalties.
See flyer hereafter: OUP UK Flyer 2010 (2)
Chillingcompetition received no copy, but others apparently did and made a good review.
Guidance (and some other stuff)
The OFT keeps doing interesting stuff. They have now published two concise and useful guidance documents aimed at ensuring compliance by small and medium companies as well as by company directors. (The Spanish CNC also did a good job in releasing guidance for associations not so long ago).
Btw, for those of you who have not yet heard about it, one of the members of the OFT´s Board, Philip Marsden, is the new competition law Professor at the College of Europe, where he´ll be replacing Richard Whish.
Unrelated:
-Rumour has it that next week the Commission will finally announce its long-awaited decision in the air cargo cartel. You can expect truly huge fines.
-Also, yesterday I attended part of the sessions of the FIDE Congress in Madrid, and it was really a privilege to see such an unusual concentration of great legal minds. I could only attend the discussion on competition issues (excellentely chaired by Judge Lenaerts), but I hear that all three panels were of great interest.
Competition Law and Sport (V) FYI
Some days ago I participated together with José Luis Buendía in a conference on sports law held at the UNED (the only state-run Spanish distance-learning university). We covered a wide array of issues concerning the application of competition law in this sector, some of which have also been discussed here in the past (e.g. football tv rights, salary caps, state aids in sports, or the SCOTUS decision in American Needle).
In addition, we talked a bit about two cases on which we´ve worked but about which there is not much information available apart from news clips. I think both cases raise extremely interesting questions, and I believe that some of you may have an interest in knowing about their existence. Accordingly, and as an exception, this post deals with two cases on which I was directly involved (take that as a diclaimer too). I´ll be as objective as I can in exposing the facts:
The first case is currently pending before the Court of Arbitration for Sport, so I won´t say much about it. It relates to a complaint lodged by the Spanish Basketball League against the project to partially close the Euroleague (the basketball equivalent to the Champions League). In the near future the CAS will therefore be ruling on whether the partial closure of a previously open league could restrict competition in any of the many markets in which basketball clubs are active.
The second case, which was recently settled, deals with exactly the same issue as the withdrawn preliminary reference in the Oulmers case, i.e. the right of clubs to be compensated by national federations for the release of their players for international games and tournaments. It was initiated by a complaint lodged by ASOBAL (the Spanish Handball League) before the European Commission in March 2009. The complaint argued that by precluding the payment of a compensation to clubs the regulations governing the release of players restricted competition in a way contrary to both articles 101 and 102 TFEU (in the latter case, it was argued that the resulations were setting “unfair trading conditions”). The Commission took an interest in the case and started a preliminary investigation which was only put to an end pursuant to an agreement between ASOBAL and the European Handball Federation. This case adds up to the settlement between FIFA, UEFA and the European Clubs Association to put an end to Oulmers as one of the most interesting “non-precedents” regarding the application of EU competition law to sport.
College of Europe
The College of Europe – the academic institution which hosts the GCLC – made the buzz yesterday. I paste hereafter the full AFP story.
Belgian premier butt of linguistic gaffe(AFP) – 1 day ago
BRUSSELS — The premier of linguistically-divided Belgium, Yves Leterme, came in for a shock on being told Tuesday that French was the nation’s official language as well as his own — though he is a Flemish-speaker.
The gaffe came when Leterme, who has a French name and speaks the language fluently, visited the prestigious College of Europe in Bruges, flanked by German Chancellor Angela Merkel, who is on an official visit to Belgium.
Delivering a speech to the pair, the head of the institution, Spaniard Inigo Mendez de Vigo, said he would conclude in Belgium’s official language, French, “the language of Yves Leterme”, raising eyebrows in the room.
Leterme currently heads a caretaker government following inconclusive general elections in June that have left the country rudderless as parties on both sides of the linguistic divide quarrel over a deal to form a government.
Sixty percent of the country’s around 10 million people speak Flemish, the remainder French.
This story is a telling illustration that no one understands a d***** thing as to what is currently going on in Belgium.
Also, the head of the College is currently Rector Paul Demaret.
XIV Curso de Derecho de la Competencia – Madrid, 14 January 2011
As every year, the Instituto de Estudios Bursatiles (IEB) and the Universidad Complutense in Madrid organizes a full course in EU competition law from January 2011 onwards (see link at the end of this post).
I have been invited to give one of the first lectures and again, it is a great honour to be part of this venture.
As you will notice, Luis Ortiz Blanco is the driving force behind this programme. Alfonso assistst him and also takes a prominent part in the programme.
Chillin'Competition 