Archive for February 2011
Next BSC Module
In the forthcoming weeks, the Brussels School of Competition (“BSC”) will host a series of three weekly lectures on “The Procedural and Institutional Framework of EU Competition Enforcement”
Our speakers are Fernando Castillo de la Torre (Legal Service, European Commission) and our friend Luis Ortiz Blanco (also Alfonso’s boss ).
We still have a few seats free. See registration form and details below.
Important for Alfonso’s growing fan-club: our co-blogger will most likely make a “not to be missed” guest appearance at the BSC.
Weekend reading and a confession
For those of you who can get some time off to do some reading this weekend, this is a real must: Why (Ever) Define Markets? , by Louis Kaplow.
PS. I was reading last week a piece on the identity of the real people behind many tweets, facebook status updates and posts attributed to celebrities, politicians and others. It made us reflect and feel bad for not having been completely open to our readers. We too have a ghost writer who does most of the work for us. He´s quite shy, but as a exception, has admitted to have a picture taken: here he is.
Mercato
Some time ago, we have been informed of a forthcoming large, big, huge move on the Brussels legal market.
The story is now official:
Our friends Trevor Soames, Miguel Rato, Stephen Mavroghenis, Götz Drauz and Geert Goeteyn are joining Shearman and Sterling as partners.
They take with them a bunch of top notch associates (we’ll report on that in the next days).
Best of luck to all of them at S&S.
Nicolas/Alfonso
Unfaithful
Shame on me: I cheated on chillin’competition.
Yesterday, a short piece emanating from my computer was posted on adjudicating europe, a blog commenting on the case-law of the Court of Justice.
I attach hereafter a longer version of this post in the form of a working paper. As usual, I’d be happy to have your comments.
And BTW, it deals with the judgment of the ECJ in VEBIC, a case that we covered on this blog a few weeks ago.
Google News
Things are developing on the Google front, and for some reason the timing of the most significant developments is practically coincidental:
The complainants in the EU investigation on Google are as active as we had forecasted. A supplementary complaint has just been lodged before the European Commission by the French company 1plusV, which controls ejustice.fr, one of the original complainants. More on the content of the complaint here.
Almost in parallel, the Texas Attorney General disclosed on Tuesday some details on the information that it requested from Google a year ago concerning the operation of its search algorithm (see here ).
The new complaint and those revelations come at at moment of growing rumors on the likelihood of an early settlement. Apparently there have been a number of preliminary talks (including a meeting between Eric Schmidt and Commissioner Almunia), although the Commission has made clear that the investigation is ongoing. An offer of commitments on the part of Google seems to be the most sensible solution from Google´s standpoint it it wants to avoid entering into a never-ending legal battle with the Commission. In fact, Google´s CEO has been reported to be thinking along these lines (see here). As we´ve said before, I very much doubt that complainants and other of Google´s competitors would be satisfied; I bet that the case will be taken to Luxembourg no matter what, but given the Commission´s litigation record in art. 102 cases (and ultimately the Alrosa litigation) there´s no doubt Google would rather have the institution on its side.
Unrelated to the EU investigation, but also of interest is the fact that the American Antitrust Institute has published a white paper arguing that the DOJ should seriously consider challenging Google´s acquisition of ITA Software. It strikes me that the AAI, whose members should probably have very divergent views, has taken such a defined institutional position on this particular deal, but the paper makes an interesting read anyhow.
PS. Once again, all the info above has been found through Google News.
Nut Complaint
After MSFT I and II, bringing an Article 102 TFEU case against the Redmond giant may have seemed an easy shot.
This is probably what prompted the Omnis Group to lodge in December 2009 a complaint with the Commission alleging violations of Article 101 and 102 TFEU.
The Commission rightly dismissed the complaint in December 2010.
From both a factual and legal standpoint, the complaint looks indeed like a (bad) competition joke.
Read and judge for yourself:
- The allegations relating to Article 102 TFEU concern a market (Enterprise Resource Planning software) on which MSFT had a market share<5%. When the Commission disputed the complainant’s dominance allegation, Omnis Group had this to reply: the Commission’s data – which is based on market intelligence from Gartner and IDC – is flawed. Microsoft lied to market research companies. Quotes from wikipedia confirm Microsoft’s important market position…
- Besides invoking all the existing types of antitrust violations under Article 101 and 102 (tying, refusal to deal, discrimination, cartel (!), monopoly (!)), the complainant took issue with a number of exotic antitrust infringements: misuse of European funds, violations of public procurement rules and corruption by Microsoft. No comment.
- Last, but not least, the complainant requested a oral hearing pursuant to Regulation 773/2004.
Omnis Group lawyers should be commended for their knowledge of competition law, and their impressive mastering of legal strategy.
This, to me, is one of the nuttiest cases of 2010.
Much Ado about Nothing
Some topics exercize a somewhat irrational fascination on competition lawyers and should not.
Take, for instance, “hub and spoke agreements“. Lately, this topic has been amongst the trendiest issues in competition law circles.
However, those are just ordinary vertical agreements with horizontal anticompetitive effects (read collusion). Conceptually, they should be dealt with along the lines of multi-agency contracts, english clauses, single branding agreements and so on.
Viewing hub and spoke agreements as a novel kind of agreements is purely formalistic reasoning.
The bottom-line: I will fight any proposal to organise an event on hub and spoke agreements :).
TV and events of ‘major importance for society’
(Once again we have the pleasure of publishing a contribution by Pablo Ibañez Colomo. It seems that the future of broadcasting rights is being decided in Luxembourg, and as he did last week when Kokott´s opinion was issued, Pablo is sharing with us his views on the latest Judgment in this area).
More on TV rights this week. In Cases T-385/07, T-55/08 and T-68/08, the General Court dismissed an annulment action against a Commission Decision declaring the compatibility with EU law of national measures concerning the broadcasting of events of ‘major importance for society’ (read: the FIFA World Cup, the Euro, the Olympics and similar sports events). In accordance with Article 3 of the Audiovisual Media Service Directive, Member States may require that these events are offered on subscription-free TV channels.
Given the way in which the said provision is worded, the outcome of the action is as unsurprising as it is uncontroversial. Some bits of the judgment raise some interesting issues:
Freedom of information: I have always been surprised by the lightness with which freedom of expression issues are addressed in TV rights-related cases. The General Court (as does the Preamble to the Directive) argues that these measures are justified by Article 10 ECHR, which includes the ‘freedom to receive information’. It is far from clear that the freedom of speech encompasses a right to access an event offered by a private actor on a subscription-free basis . Does this mean that publishers breach the freedom of information of their readers when they charge for their newspapers informing about events of ‘major importance for society’?
Have your cake and eat it?: When reading about Article 3 of the Audiovisual Media Services Directive, I cannot help thinking about the hybrid situation they create. Sport has become a multi-million business benefitting its governing bodies. If governments do not object to these developments (and I am not suggesting that they should), I do not see why they interfere downstream in the value chain to create market distortions at the level of broadcasters (which very often means, moreover, that public broadcasters end up paying for the rights).
Slides of GCLC Conference on Horizontal Cooperation Agreements
A good conference overall, nice turnout, good speeches (with a hat tip to Adrian Majumbar who made a remarkable presentation).
A. Gutermuth GCLC – Revision of R-D BER – 16 Feb 2011_(EUROPE_10326795_2) (3)
D. Wood – Horizontals presentation – GCLC – 14022011 (2)
HCG Chapter on Standardisation – GCLC
J. Koponen – Joint purchasing agreements (2)P. Hellstrom – GCLC Standards Brussels Feb 2011 (2)
R. Hesse GCLC Presentation FINAL (2)
Lars Kjolbye – GCLC 16 February 2011 Information Exchange (2)
Apple´s offer to publishers & an overstatement on lawyers´(un)happiness
Today we´d like to point you to a couple of short and interesting pieces on which we would appreciate hearing your views:
As some of you may know, Apple recently announced that it will allow newspapapers, magazines and other publications to sell digital subscriptions of to iPhone, iPad and iTouch users (if you don´t, see here). An interesting post published yesterday on The Wall Street Journal Law Blog (see here) has highlighted the potential antitrust-related risks incurred by Apple with regards to some of the terms of its offer. One of the central issues essentially boils down to defining the relevant market affected by Apple´s offer: is there a relevant market for consumer tablet computers? A wider market for digital and print media outlets? Any opinions? And even case Apple were found dominant in a nascent market, should that warrant antitrust intervention?
A second interesting, and certainly controversial piece of reading, is this one. It´s an article written some years ago in The Sunday Times concerning lawyers´ dissatisfaction with their work. I have stated here some of my views on this topic, and I´ve even ventured some criticism on how things are often done (see here and here). However, I view this article as overstepping the mark and as a consequence it ends up depicting “City” lawyers -and, in a sense, the whole profession- in a way that makes lawyers appear as despicable inhuman beings. There are a number of cheap overstatements in this admittedly somewhat tongue in cheek article, but I´m sure it should elicit some reactions amongst our readership.
Chillin'Competition 
