Chillin'Competition

We have already talked of the Commission’s somewhat confusing disclaimers in official documents.

Think of §3 of the Guidance Communication on exclusionary abuses under Article 102 TFEU : “This document is not intended to constitute a statement of the law”

Or of the good old “The opinions expressed in this document are those of the author and do not represent the views of the European Commission nor of its services“.

Antitrust lawyers often make jokes about the Commission for those disclaimers. But should they?

During the consultation process on the settlement notice, a famous law firm inserted this courageous, delicious footnote in its position paper:

 “These comments do not represent the views of the Firm or of its clients.”

So whose views are these? Please help me, because I am lost.

I am even more puzzled given that a few lines above, the same document explicitly mentioned that:

“These comments are offered by the Brussels office of __ & __ LLP in response to the Commission’s invitation to comment.”

Given our track record on this blog, we cannot be suspected of trying to stigmatize this particular law firm. We have very good friends there and they are all stellar professionals.

This is just to show that no one’s perfect in this business, and that it is quite easy to make fun of those who make fun.

PS: Thanks to my assistant N. Neyrinck for the pointer.

PS2: In a paper written with my esteemed colleague Miguel Rato (Shearman & Sterling), we stressed that regardless of those disclaimers, oral statements may to some extent limit the enforcement discretion of the Commission and, as a result, be relied upon by affected parties to challenge a formal Commission decision. In Case T-25/99, Roberts and Roberts v. Commission, the GC for instance reviewed the substance of a public speech given by a Commission official on specific aspects of the application of competition law to pub contracts (§§128-129).

PS3: Picture taken from a very good LP, if you do like post grunge music.