Chillin'Competition

For this fifth edition of the Friday Slot, Chillin’Competition has interviewed a true master competition lawyer, Jean-François Bellis (Van Bael & Bellis, Brussels). The ITW tells it all, Jean-François is a person with many facets, i.e. litigator, entrepreneur, academic, teacher, etc. And the thing is, on all those fronts, he just stands out… It is a great honour for us to publish today his stimulating, inspirational interview.

“Oscar” of the best competition law book? Non-competition book?

Without question, the Van Bael & Bellis competition law book, now in its fifth edition, should win the prize! Seriously now, in my view, the most influential competition law book ever written is Robert Bork, “The Antitrust Paradox”, which so powerfully contributed to establishing the current accepted wisdom that the aim of competition law is to maximize consumer welfare. It is difficult to find a competition law book that has had as significant an effect on the practice of antitrust/competition law.

On the non-competition side, there is an embarrassment of riches. I have great respect for Orwell who, among other things, deserves the Oscar for the best opening line (“The idea really came to me the day I got my new false teeth” in “Coming up for Air”). But, as a lawyer, my vote will go to “The Trial” by Kafka. Quite fittingly, this book was one of the highlights of the course on literature in the first year of my law studies at the University of Brussels. Since I began practicing competition law, I had the impression of performing in it more than once.

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

The KME judgment issued by the Court of Justice on 8 December 2011 may turn out to be a landmark case in that it spells out the concept of full review in competition cases. To some extent, it mirrors the Strasbourg Court Menarini judgment issued on 27 September 2011 which affirmed the consistency with Article 6 of the Convention of administrative enforcement procedures provided that they are subject to full review by an independent court.

In terms of worst case-law development, I am concerned that the Court of Justice’s revisiting of parent liability issues last year may be generating uncertainty, and fear that this could potentially have unintended consequences in other areas of EU competition law (such as the possibility that Article 101 TFEU may be applied to intra-enterprise agreements between subsidiaries of the same group).

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?

The changes I would like to see all concern judicial review. First, I would like to see the advent of genuine full review of Commission decisions of a repressive nature, i.e. those that find infringements of Article 101 and 102 TFEU. Second, as I am advocating in an editorial in the first issue of Concurrences of this year, I would like to see the rules of procedure changed so that undertakings accused of an infringement of EU competition law be given the last word in court proceedings in line with the universal practice in criminal proceedings. Third, I would like to see more expeditious treatment of appeals: in the past, it took on average two years for the Court of Justice to handle a competition case. This should again be the norm.

Average working time/week?

From 9 to 9 every working day plus whatever additional time may be needed to complete an urgent project or prepare for a case.

Why do you work in competition law? How did you first get into it?

I discovered European competition law as a student of Michel Waelbroeck’s seminar on EEC law at the University of Brussels in 1971, and found it fascinating that so many rules could be read in two Treaty provisions consisting of just a few lines. In my postgraduate studies at the University of Michigan Law School in 1973, I focused on antitrust and was exposed for the first time to the (what were then) revolutionary Chicago School ideas in a seminar on the economics of antitrust given by Professor Steiner. At a time when EC competition law was characterized by a total absence of economic analysis, the contrast with the sophistication of the academic debate in the US could not be starker. On my return from the US in 1975, the United Brands case—and Ivo Van Bael who was handling it—were waiting for me…

Most interesting, intense or funny moment of your career?

The most intense moments in my career have always been connected with a court case. Every case has its own special moments but, in terms of intensity, the one week spent in Luxembourg in the Microsoft hearing in 2006 was probably the most intense with the mass of technical details to absorb and some very short nights. The picture above was taken on the last day of the hearing after the shortest night.

Your role model (if any) in the competition community?

I have a special appreciation for Michel Waelbroeck, who gave me the competition law bug. I also have great admiration for Eric Stein who welcomed me to the University of Michigan where he gave a seminar on European law which had very few equivalents in European universities at that time. My mentor in the competition practice has, of course, been Ivo Van Bael, who was the lead counsel in most of my first cases. Lord Mackenzie Stuart, whom I served as a référendaire at the Court of Justice in 1979-1980, impressed me by his gentle efforts to inject a dose of pragmatism into a jurisprudence marked by an excessive use of the “teleological” approach, a word that has disappeared from the current academic vocabulary. I also have fond memories of JP Warner, who was one of the best Advocate Generals, and René Joliet, who was a great judge at the Court of Justice and is sorely missed.

What do you like the least about your job?

The institutional bias in favor of the Commission in competition cases, which I believe results from the unique political dimension of competition law in the EU system. Competition policy is indeed the only field where the EU executive has direct enforcement powers. This political dimension is largely absent at the Member State level.

What do you like the most about your job?

The interaction with clients, the challenge of identifying issues, discovering new industries and new countries, and the pleasure of working with enthusiastic young lawyers.

What do you like the most about economics in competition law?

Economic analysis may contribute to producing better decisions and developing better policies. The Commission’s current output of decisions has very little in common with that of ten years ago when so many cases still dealt with export bans and other vertical restraints. The current focus on cartels, in particular, reflects  a vision of competition policy shaped by the economic insights of the Chicago School.

What you like the least about economics in competition law?

The use of economic theories which sound superficially sensible but have no connection with the underlying facts such as, for instance, the “effects-based” theory of foreclosure ( the first of its kind) developed by the Commission in the tying section of the Microsoft decision. This provided economic support for a decision that fined Microsoft for having failed to offer a product, Windows N, which any reasonable and objective person could have forecast nobody would ever want to buy.

What career/personal achievement are you most proud of?

The satisfaction of seeing the team of competition lawyers in Van Bael & Bellis grow in size and experience while remaining fiercely independent.

A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?

Academia tempted me for a while before I plunged into the life of a practitioner. Yet I have been fortunate to be able to combine teaching with my law practice especially in the last 12 years. I would lead the more contemplative life of a pure academic if I was not what I currently am.

Besides being a “competition geek” (sorry for this one, but we all are), what are your hobbies?

I’m an avid reader. I have a keen interest in art with very eclectic tastes ranging from Japanese zen paintings to modern masters, such as Anselm Kiefer, for instance, whose two recent exhibitions in Baden Baden and the White Cube in London were an enchantment. Every year, I also try to find the time to dive in a warm sea with Micronesia being one of my favorite destinations.

Favorite movies?

All the Stanley Kubrick movies without exception, including the one he did not shoot- Napoleon – which would have been a great movie as suggested by the extraordinary preparatory work revealed in the current traveling Stanley Kubrick Exhibition.

Favorite music style in general?

I am also very eclectic in my musical tastes ranging literally from Bach to Jimi Hendrix.

Your favorite motto?

« Honni soit qui mal y pense ».

Websites that you visit the most (besides Chillin’Competition)?

Apart from professional and art-related websites, I enjoy visiting the Big Bang Blog of Victor Ginsburgh, a professor of economics at the University of Brussels, who regularly provides an impertinent and humorous comment (in French) on miscellaneous current affairs.

A piece of advice for junior competition professionals?

Leave no stone unturned. Analyze the issue from all possible angles. Write clearly and simply. Have the humility to accept criticism and never stop learning.