Chillin'Competition

You all are familiar with leading cases in the EU competitition law canon such as  Michelin II, Pre-Insulated pipes, Métropole,  O2, Cementbow, IMS, Endesa, Aer Lingus (in the Ryanair merger case), Glaxo Smithkline, Lélos, Astra Zeneca, Wanadoo, Telia Sonera, KME, Teléfonica or Tomra.  A good question for one of our quizzes would have been to ask what it is that all of these cases have in commmon. The right answer would be that in every single one of them one of the Legal Service’s agents representing the European Commission in Court was Eric Gippini-Fournier.  

Today’s Friday Slot features an interview with him. Eric is one of my (I don’t use the default plural here because Nico and Eric have not yet properly met, although this will be fixed soon) favorite people in this small competition law world. After reading his answers to our questionnaire you will understand why. Above all, Eric is an incredibly nice, reasonable, gentle and frank guy. But he’s also a brilliant and intellectually honest jurist, a tough adversary, and -like Fernando Castillo de la Torre and other members of the Legal Service– he’s a living encyplopedia on competition law. Eric is not contaminated or constrained by some of the oddities that at times surround the profit-making side of this business, and this often gives his views an added interest. On top of all of the above, we also share a taste for late Sunday lunch at Roi du Poulet…  We are very thankful to him for having accepted our invitation to appear here.

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

The best antitrust books are slow food, the result of a long process by one or two cooks, not more. Areeda/Turner, Bork’s “Paradox” and Waelbroek/Frignani are great examples. Among recent books, I would nominate Luis Ortiz Blanco’s “Market Power in EU competition Law”.

Non-antitrust books? “Belle du Seigneur” by Albert Cohen comes to mind.  Lately I have enjoyed Art Spiegelman’s “Maus“, and two great biographies, of Benjamin Franklin and of Franklin D. Roosevelt (both by Henry Brands).

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

My nominations in the first category will not necessarily please the blog hosts. They go to the ECtHR (Menarini Diagnostics), the ECJ (TeliaSonera, KME Germany and Tomra), and the EFTA Court (Posten Norge). On the “bad” side, I have misgivings –but only that, misgivings– about the hands-off approach to reverse payments, most recently by the court of appeals for the 11^th circuit in Watson Pharmaceuticals.

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

I am not fond of the law on exploitative abuses, in particular excessive pricing. In fact I am not sure that prosecuting excessive pricing –essentially a consumer protection issue– fits with the overall design of EU antitrust, with its focus on protecting the competitive process.

I would revamp evidence rules before the EU courts, for example re-introduce the old ECSC rule that, in case of appeal against a Commission decision, the entire case file is automatically transmitted to the General Court. Right now the court file includes only evidence provided by the parties, which gives an incomplete view of a case.

Average working time/week?

Probably too much. I don’t count the hours but it should be possible to do the math. At any given time I have 40 or 50 cases pending before the EU courts and in a typical year I present oral argument in eight to twelve hearings, sometimes more. I should say that litigation is less than half of my workload.

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

My home university inSpain has a tradition in IP and competition law. By law school graduation, the Merger Regulation had just been adopted, and it was the subject of my thesis. I then studied EU and U.S. antitrust at Bruges and Berkeley, with Robert Kovar and Einer Elhauge. These great teachers, and others like Val Korah and Louis Vogel inspired me. I also did some basic microeconomics coursework at LSE when I was a teaching assistant in Bruges and we were about to introduce a microeconomics course for lawyers.

All this was twenty years ago. What keeps me interested is that each antitrust case requires me to study and understand a different technical and economic reality: how Tetra Paks or CPUs are made, the intricacies of copyright management societies or the details of pharmaceutical pricing in Spain.

Most interesting, intense or funny moment of your career?

Around 1998 I had a hectic, but very interesting time with sports-related antitrust issues like FIA/Formula One and the FIFA player transfer regulations. I have had intense hearings over the years, including GlaxoSmithKline, Telefónica, and many others.

Funny moments came especially in non-antitrust cases. In a case involving regulatory obstacles to selling nutritional supplements, we arranged to meet with the complainant’s board of directors. Four huge bodybuilders showed up, each 150 Kg of muscle and built like trucks! We immediately agreed with everything they said and promised swift action.

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

I don’t know if these are my “role models” but I like powerful, independent thinkers who disregard conventional wisdom: Einer Elhauge, Aaron Edlin, Giuliano Marenco. The late Phillip Areeda, for his centrist views and comprehensive scholarship. Looking beyond antitrust, Koen Lenaerts’ intellect never fails to impress.

What do you like the least about your job?

The antitrust microcosm can sometimes be very ideological, narrow-minded and obsessive.

What do you like the most about your job?

After almost 200 court cases, I enjoy litigation like the first day. I defend the public interest, and I believe in what I do. I work in what I consider to be the best international law firm in Brussels, pound for pound (others may of course differ, but that’s my honest view from a good vantage point). I get to work with good friends (we have a well-established, enjoyable and –if I may say so myself– effective “duet” with my pal Fernando Castillo), and I do non-antitrust work whenever I want to.

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

Who does not like an elegant model? Streamlined and well-presented, oozing integrity, where the assumptions and limitations are clearly exposed. Those can leave a powerful impression.

What you like the least about economics in antitrust law?

“Proofiness”. Econometric reports that cross the fine line between disputable and baloney, hide critical assumptions, assert claims as “indisputably proven”. You can’t bamboozle your way into a judge’s mind, no matter how much math you use.

What career/personal achievement are you most proud of?

I would not pin down a single case or episode. Let’s say that I am guided by my perception of what is right, and I strive to meet high standards of quality and ethics. Whether I am succeeding is for others to say.

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

I would probably have become an architect, or done anything involving higher education, writing, or advertising. Or managed a small hotel. Staying in the legal field, I would consider practicing in the U.S. or reconnecting with sports and entertainment law, copyright and trademarks.

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

I am a minor tech geek, so I spend more time than I should tinkering with my home computer network (I wouldn’t have to, if I was any good at it).

I like classic cars (a hobby I can’t afford) and I have an old house with a garden, a large book collection and a set of electronic drums which keep me busy when I don’t bring work home (which is not often). I gave up handball and basketball after an injury, so now I run, or rather, trot. My modest goal is making it to the finish line in theBrussels20 Km race this year.

Favorite movies?

The obvious ones plus: 12 Angry Men; Blade Runner, The Deer Hunter, Delicatessen, Brief Encounter, Rear Window, American Beauty, Musíme si pomáhat…and many more. Definitely not “Antitrust”!

Favorite music style in general?

Soul, R&B, jazz and nu-jazz. But my current playlist is very diverse (all sorts of stuff: Miles, Jeff Buckley, Ella Fitzgerald, Russian Red, Arcade Fire, Lou Reed, Paco de Lucía, Sufjan Stevens, Radio Futura, Digable Planets…). Anything recorded by David Bowie between 1972 and 1981 is a safe bet, and I am always on the lookout for covers of pop/rock classics, the more unexpected the better (for a taste, listen to Nouvelle Vague or the ParisDernière series). Maybe your readers have suggestions.

Your favorite place in the world?

If I were to take a one-week vacation tonight, it could be the San Francisco Bay area, Ibiza, or Corsica. I am also part of the rare breed of Brussels-lovers; I enjoy this city immensely. But “home” is a secret spot in theRías Baixas,Galicia, where I come from.

Your favorite motto?

In a time of universal deceit, telling the truth is a revolutionary act

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

Sadly, I would have to say EUR-Lex!

Also SSRN.com and the very active blog of a friend, Jesús Alfaro (derechomercantilespana.blogspot.com). Plus various social networks and all sorts of tech and electronic gear websites, where I obtain expert reviews, accurate specifications, user tips and opinions before I buy locally in a physical store. Yes, I am a free rider.

A piece of advice for junior antitrust professionals?

1) Question everything, including buzzwords, slogans and received wisdom;

2) There is life outside antitrust. If you think antitrust is different, special, unlike anything else… you have started to lose perspective.

***

P.S. For those who have never attended a Court hearing in Luxembourg, this is a pic showing how Eric’s desk ended up after the 11-hour hearing in the Telefónica case: