Chillin'Competition

For this fourth edition of the Friday Slot, Prof. Richard Whish has taken the time to address our questions. As everyone knows, Prof. Whish is the author of the ultimate EU competition book, a book with a big B which is a model of clarity and accuracy. Amongst other things, in this  ITW, Prof. Whish takes distance with the dominant view on Tomra and TeliaSonera and alludes to encounters with mutant economists. Thanks to him for accepting to appear in the Friday Slot. A great honour for chillin’competition.

“Oscar” of the best competition law book?  And of the best non-competition law book?

Well, obviously I cannot say Whish on Competition Law! I greatly admire Oke Odudu’s The Boundaries of EC Competition Law for incisive and original thinking and for in-depth research. On procedure there is nothing to match the series of essays written by Wouters Wils and published in a series of books since 2002.  As for other books, where to start! I suppose if it had to be just one I would go for George Eliot’s Middlemarch for a view of all things English (good and bad). I am not aware of a finer character in literature than Dorothea Brooke.

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

I very much liked the judgment of the Court of Justice in TeliaSonera, a view that is not widely shared, it would seem. To suggest that a margin squeeze cannot be an abuse in the absence of a duty to deal, to my mind, would emasculate Article 102 and to limit it to the control of monopoly rather than dominance.

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

I wish that we could start over again on refusal to supply and on rebates. I am not a critical as some commentators about the current law in these areas, but I do think that it is difficult to explain quite how we got to where we now are. I have difficulties with Commercial Solvents, which is where the law on refusal to deal started: to what extent was the Court really concerned that Commercial Solvents had discontinued a customer who had become dependent upon it? The national laws on economic dependency do not, to my mind, qualify as ‘competition’ laws, but their existence has percolated into the competition rules.  As for rebates, some of the judgments contain statements that suggest per se illegality, which cannot be correct. Tomra and Intel will be very important judgments on this: to what extent, I wonder, will the Commission’s Guidance document have an influence on the Courts dealing with those appeals?

A different point is that I think that changes are needed at the General Court as to the way that it conducts its review of Commission decisions: I am not thinking so much of the intensity of the review as the actual procedure.

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