Relaxing whilst doing Competition Law is not an Oxymoron

I wish I was…

with 5 comments

During a recent conversation with a Judge, he mentioned that he felt envious of competition agencies (we were talking about the European Commission) because they could easily behave in a “schizophrenic” way, taking one stance in one case and a completely different one in another. He argued that courts are much more concerned about respecting their own precedents (as I pointed out, there are also some nuances to this view) than competition authorities are. In my view, there is a lot of truth to this statement; competition enforcers do not feel bound by their decisional practice because the Court has endorsed the view that each case must be dealt with in light of its specific circumstances. Moreover, progressive interpretations of the law (notably with regard to unilateral behavior) show that some national competition authorities as well as the European Commission do not necessarily feel obliged to follow the case-law neither. To a certain extent, much of this could be understood, but only provided that adequate reasoning is offered to justify that the circumstances merit a change of approach. Sadly, this is not always the case (although, to be fair, the Courts are not a paradigm of transparency when they overrule their previous case-law neither). I´m sure you can think of quite a few examples of radical unexplained shifts.

This conversation made an idea spring to mind: we should ask you who or what (within the antitrust world; yeah, we know, that´s pretty limited, but..) do you wish you were?

Here are a couple of ideas to get the ball rolling:

– I wish I was one of those economists who can say “this is an economic model that we developed for this particular case“. I´m waiting for the day when I can say “this is a legal principle that we developed for this particular case“!.

– I wish I was NOT the lawyer (or rather the former lawyer, I suppose) of the Austrian company that has requested a preliminary ruling from the ECJ on whether having obtained wrong legal advice can exempt a company from responsibility…

Anyone else?

Written by Alfonso Lamadrid

16 January 2012 at 5:58 pm

5 Responses

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  1. In US death penalty law, this is called “ineffective assistance of counsel“. If you can prove it (and prejudice), you win a retrial.

    As for who I’d like to be, the answer would be, well, you. If you’re representing the applicant in a competition case before the Court, you get to play advocate for the devil without concern for petty worries like consistency, secure in the knowledge that you only have to get lucky once to earn your pay check. What could be more fun than that?

    Martin Holterman

    16 January 2012 at 6:57 pm

  2. I wish I was not the associate who got wrong the calculation of the appeal delay in the Bananas case. Or maybe I should say: I wish I was not the partner who had his associate sign a witness statement saying that it was his fault, always in the Bananas case.


    16 January 2012 at 10:52 pm

  3. – Martin: thanks a lot for the comment, although I would advise you to choose better what you wish you were 😉 Being a researcher at the EUI in Fiesole can sometimes be more fun that being a competition lawyer representing an applicant in a competition case!

    Actually, you make a very good point. It´s much more difficult to be at a public authority, be it at the Commission or at a Court, because you do (or should) need to be concerned about consistency. It´s also fair to say that lawyers often try to get both the Commission and the Courts to change their approach by “distinguishing” a particular case from the precedents. I guess it´s part of the job, just as public authorities´ job is to objectively state and apply the law. In any case, not all lawyers get to act “without concern for petty worries like consistency”. Many, in particular those who are also in academia (and who take academia seriously) do worry about such things when it comes to matters of principle. As one of my favorite lawyers says, there is a species of “invertebrate lawyers” that is able to defend radically opposite positions brilliantly (btw, I´m not necessarily saying that this is bad), but not everyone is like that.

    -Thanks a lot to GDS too; I knew about the wrong calculation but had never heard about the witness statement!! Any further info on this would be very welcome…

    Alfonso Lamadrid

    17 January 2012 at 6:47 pm

  4. By the way, I´ve seen on the blog stats that a significant number of people have clicked in the hyperlink that we included at the end of the post. Just to make it clear: I don´t understand a word of German neither (a friend was kind enough to translate it). We posted that link because I couldn´t find any othe reference to the case. M-Lex did report about it some weeks ago, but their content is of course only available to subscribers.

    Alfonso Lamadrid

    17 January 2012 at 7:03 pm

  5. Re. bananas:
    Case T‑2/09, para 18 “The applicant concedes in its observations that the action was lodged late, that lateness resulting, in its submission, from a genuine misunderstanding on the part of its representatives of the operation of the Rules of Procedure. More specifically, the applicant provides, in the Annex to its observations, a witness statement from one of its representatives stating that three of his associates considered, in good faith, that the period of time expired, according to a reading of Article 101(1)(a) and (2) together with Article 102(2) of the Rules of Procedure, on 2 January 2009.”


    17 January 2012 at 11:07 pm

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