Archive for June 2012
Tacit cartels
A year and a half ago we anticipated that there was a rumor that the European Commission was thinking about attempting to prove a cartel by resorting to indirect economic evidence instead of to “smoking-gun” sort of evidence. See here. We said back then that economic analysis may be very useful for the purpose of identifying cartels, but that it may not be sufficient to prove their existence.
A few developments have taken place since we wrote that post. To mention only three: (i) the case -concerning cement producers- was indeed formally opened; (ii) I became involved on it as one of the lawyers for one of the investigated companies, which is why I’ve never referred to it again on this blog; and (iii) a number of affected companies -including our client- appealed the Commission’s decision requesting the said companies to dig their own grave provide the millions of data necessary to cook the economic evidence.
We won’t talk about this ongoing investigation nor about the pending Court cases. What we want to bring to your attention is that the Competition Commission of India (CCI) has already made a very similar move by sanctioning (with $ 1.26 billion) 11 cement producers for an alleged cartel on the basis of circumstantial economic evidence. See the press release here.
The CCI’s case is built on the observation of price paralellism, increases in price following certain meetings, low levels of capacity utilization, dispatch paralellism and the earning of super-normal profits.
As I told my new Korean friends last Tuesday, competition law is becoming a discipline with no center. It’s therefore safe to guess that we will be seeing many additional test-cases initiated in jurisdictions other than the US and the EU.
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Another different but very important news: more than a month has gone by since WordPress selected us for a pilot project pursuant to which AdWords are now displayed on Chillin’Competition. We are very happy to report that the approximately 25.000 visits that we’ve had since then have almost made us rich. We have so far earned 9,80 euros!!! In another month we’ll save enough money to pay a couple of beers 😉
Case T-167/08, Microsoft v European Commission
I’ve just returned to Brussels after spending a great day of immersion into Korean culture in Frankfurt. The Korean Fair Trade Commission invited me to speak about international cartels to approximately 100 Korean executives of Korean companies operating in Europe within the framework of an Anti-Cartel Workshop [check out the program: Anti-cartel workshop :)] I had a great time in our very unorthodox and fun session as well as in the different social events with which they treated me afterwards. To all of them: 감사합니다 !! We have more things to tell you about this event and about recent trends in cartel case-law, but, first, let’s deal with today’s big news:
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This morning the General Court issued its judgment with regard to the periodic penalty payment of 899 million euros that the Commission imposed on Microsoft for not complying adequately with the Commission’s 2004 infringement decision and, in particular, with the obligation to provide interoperability information under reasonable and non-discriminatory conditions. (Click here to read the Judgment).
We believe this post is the first hastily written analysis of the Judgment. Apologies for the long post, but this time we think we have something interesting to say.
[btw, you might recall that in previous posts we talked about the Hearing in this case (here), and even provided you with the report for the hearing (see here)].
I have only had time to skim through the Judgment, but here’s how I think its main points can be interpreted: Read the rest of this entry »
Do Fast Moving Markets require Fast (and Furious) Competition Authorities?
In support of his aggressive move against Google on 25 May 2012, Commissioner Almunia declared:
“I believe that these fast-moving markets would particularly benefit from a quick resolution of the competition issues identified. Restoring competition swiftly to the benefit of users at an early stage is always preferable to lengthy proceedings, although these sometimes become indispensable to competition enforcement“.
Later in June, he again said:
“I strongly believe that users and competitors would greatly benefit from a quick resolution of the case; it is always better to restore competition swiftly in fast-moving markets, provided of course that the companies concerned are ready to seriously address and solve the problems at stake“.
Commissioner Almunia, and his advisers, must have read Judge R. Posner who warned 10 years ago that:
“Antitrust litigation moves very slowly relative to the new economy. Law time is not real time. The law is committed to principles of due process that limit the scope for summary proceedings, and the fact that litigation is conducted by lawyers before tribunals that are not technically trained or experienced inevitably slows the process.
The mismatch between law time and new-economy real time is troubling in two respects. First, an antitrust case involving a new-economy firm may drag on for so long relative to the changing conditions of the industry as to become irrelevant, ineffectual. That was a problem even in the old economy. One recalls for example that by the time the monopolization case against Alcoa completed its journey through the courts, Alcoa had lost its monopoly for reasons unrelated to the litigation; as a result, the decree finally entered against Alcoa offered little more than nominal relief (the divestiture of Alcoa’s Canadian subsidiary). This type of problem is likely to be more frequent in the new economy.
Second, even if the case is not obsoleted by passage of time, its pendency may cast a pall over parties to and affected by the litigation, making investment riskier and complicating business planning“.
Does this call for novel enforcement tactics, with increased recourse to settlements and interim measures?
Or, in evidentiary words, does this require doing away with “cogent evidence” in exchange for “serious doubts“? I have my own doubts.
And Posner too. As he, very humbly, recognizes: “This problem will be extremely difficult to solve; indeed, I cannot even glimpse the solution“.
If God Posner cannot find it, we are indeed all doomed.
Competition enforcement in Spain
A member of the Board of the Spanish Competition Authority said a few weeks ago that the institution is on the verge of a dismantling process. The statement was made in relation to a draft law that aims at merging the competition authority with sector regulators in order to create synergies, avoid inconsistencies and save some money (the latter being, of course, the current overarching principle of all Spanish policies).
Although I could see some usefulness in discussing some of the proposed changes, most Spanish practitioners, the members of the CNC, and the current sector regulators are not big fans of the current hastily drafted draft Law. We personally tend to share some concerns with regard to the current version of the project.
I have not always agreed with the CNC’s way of doing some things, but disagreeing with them is part of my job. Overall, however, the CNC has done a good job, and it has certainly increased the public awareness about competition law in Spain to unprecedented levels. Attempting to save some pennies by reshuffling an efficient (and “profitable”) organization may not be a smart move.
At the political level there’s the question of whether this reform should be one of the countries’ priorities right now. From a strictly legal point of view, blurring the frontiers between the applicable standards, attitudes and instruments used in competition enforcement (a sanctioning system with criminal features) and those characterizing sector regulation can be -if not well thought out- very problematic.
We’ll develop our views in a few days (consider this as an appetizer); for now, it suffices to observe that the uncertainty brought by the prospect of immediate changes (which are also reportedly aimed at expected to affect the members of the Board) is significantly affecting enforcement. Whereas in the past we branded the CNC as “overzealous“, the tide has now turned and the Spanish watchdog seems to be on a sleeping mode waiting mood. (yes, we like complaining no matter what).
The latest investigation concerns bullfighters. No kidding: see here.
As if I hadn’t heard enough clichés about Spain over the past few weeks!
Interesting New Book
Hart Publishing has a new volume which looks very interesting. Hart Publishing has offered to send a free copy in exchange for ad placement. Given my current research focus on IP and Antitrust, I have decided to accept the offer.
Intellectual Property, Antitrust and Cumulative Innovation in the EU and the US
By Thorsten Käseberg
For decades, the debate about the tension between IP and antitrust law has revolved around the question to what extent antitrust should accept that IP laws may bar competition in order to stimulate innovation. The rise of IP rights in recent years has highlighted the problem that IP may also impede innovation, if research for new technologies or the marketing of new products requires access to protected prior innovation. How this ‘cumulative innovation’ is actually accounted for under IP and antitrust laws in the EU and the US, and how it could alternatively be dealt with, are the central questions addressed in this unique study by lawyer and economist Thorsten Käseberg.
Taking an integrated view of both IP and antitrust rules – in particular on refusals to deal based on IP – the book assesses policy levers under European and US patent, copyright and trade secrecy laws, such as the bar for and scope of protection as well as research exemptions, compulsory licensing regimes and misuse doctrines. It analyses what the allocation of tasks is and should be between these IP levers and antitrust rules, in particular the law on abuse of dominance (Article 102 TFEU) and monopolisation (Section 2 Sherman Act), while particular attention is paid to the essential facilities doctrine, including pricing methodologies for access to IP.
Many recent decisions and judgments are put into a coherent analytical framework, such as IMS Health, AstraZeneca, GlaxoSmithKline (in the EU), Apple (France), Orange Book Standard (Germany), Trinko, Rambus, NYMEX, eBay (US), Microsoft and IBM/T3 (both EU and US). Further topics covered include: IP protection for software, interoperability information and databases; industry-specific tailoring of IP; antitrust innovation market analysis; and the WTO law on the IP/antitrust interface.
Link to table of contents http://www.hartpub.co.uk/pdf/9781849463065.pdf
The Author
Dr Thorsten Käseberg, a lawyer and economist, was a case-handler at the European Commission’s Directorate-General for Competition between 2009 and 2011. He is currently working in the competition policy unit of the German Economics Ministry and was previously a lecturer in the Faculty of Law and Faculty of Economics at the Humboldt University Berlin, and a research assistant at the law firm Cleary Gottlieb Steen & Hamilton in Brussels.
June 2012 330pp Hbk 9781849463065 RSP: £75 / US$150
20% Discount Price: £60 / US$120
If you would like to place an order you can do so through the Hart Publishing website (links below). To receive the discount please mention ref: ‘CCB’ in the special instructions field. Please note that the discount will not be shown on your order but will be applied when your order is processed.
UK, EU and ROW: http://www.hartpub.co.uk/books/details.asp?isbn=9781849463065
US: http://www.hartpublishingusa.com/books/details.asp?isbn=9781849463065
Thoughts on Transfer of Technology, and More
At today’s GCLC lunch talk on transfer of technology agreements, a number of thoughts sprung to mind. Here they are.
- As part of our professional ethics, we competition lawyers should stop saying that IP confers a form of “monopoly” on its owner. Like property rights over tangible goods, IP – I talk here essentially of patents – confers property. A patent confers property over the usage of technical specifications, full stop. But – and this is a big But – IP does not imply, as the term monopoly suggests, the absence of alternative technical specifications. On many markets, several IP compete for a given product, service, functionality.
- Aren’t we over-regulating the issue of standard-essential patents? There’s no robust evidence that patent thickets are a widespread + harmful phenomenon. However, as a result of the mass-mediatization of several cases, and of the possible inability of the Commission to deal with those cases swiftly and thoroughly, we are heading towards the adoption of general rules in a range of soft law instruments. Last year, we got a new section on standardisation in the Guidelines on Horizontal Cooperation Agreements. The upcoming revised TTBER and its set of accompanying Guidelines may just bring about more rules. As a matter of principle, I would question such an approach, absent empirical case-related evidence.
- The use of “double negatives” in the list of hardcore restrictions should be avoided. D. Woods said the Commission would make some thinking on this. And I trust most EU competition law students would be grateful if the Commission made progress on this.
- The SEP=SMP shortcut is misconceived. It fails to grasp that several standards, or non-standardized technologies can compete for a given functionality, product, service. Moreover, standardization is a repeated game, so any attempt by a SEP holder to raise fees may be sanctioned at a later stage by other standard participants. And finally, SEP holders must often obtain licences from other SEP holders.
- A speaker made the point that it would be counterintuitive if participants to patent pools had to pay experts to determine on an ongoing basis whether the patents are valuable (or not) and in turn should (or not) stay in the pool. It is indeed a little weird to pay someone and entrust him with the mission, and power, to kick you out. And there are other risks: conflict of interest, bribes, etc. But aren’t most trade associations paid by their members, and yet keep a right to exclude participants if the membership conditions are no longer met?
- A popular policy argument to discard the need (and legitimacy) of antitrust intervention is that contemplated market failures are caused by regulatory frameworks. And the argument logically follows that regulatory defects should be solved by bringing changes to the regulatory framework, not by applying the competition rules. This argument has been made in virtually all sectors of the economy that have attracted antitrust scrutiny in the past decades, e.g. pharma, financial markets, telecoms, etc. I have, myself, made this point in a number of papers, but I have second thoughts on it now. Whilst I still believe that pieces of legislation adopted under a fully democratic procedure should not be undermined by ex post bureaucratic competition enforcement, I am also a pragmatist. In this respect, I tend to consider that antitrust enforcement may bring quicker, and better fixes, than protracted regulatory action (for instance, a reform of the IP system in the case of patent thickets). Plus antitrust enforcement is more reversible than regulatory action (in case of mistake). And finally reforms of regulatory regimes just have corrective effects for the future, and do not address existing problems…
Random thoughts on life at law firms
Our most recent posts speak for themselves: both Nico and myself are currently quite absorbed by work and have struggled to find the time to write some sensible and substantive stuff here (we’ll be back to substance next week) nor to attend the various social competition law events taking place these days. [Query: if everyone is partying or writing blogs, who works here??!] . However, the “hecticness” of these past few days has spurred some random thoughts with regard to life at law firms (the fact that for the first time ever I have to alter my summer holiday plans because of work has also contributed to some intense reflection). Here they are, in the hope that they give rise to some debate: Read the rest of this entry »
Apologies
Alfonso and I owe a big apology to Francesco Carloni (Shearman & Sterling), Luca Crocco and Gianni de Stefano (Latham & Watkins).
Our friends organized yesterday an anniversary cocktail to celebrate the first year of existence of Italian Antitrust Association antitrustitalia.
I came back late from Bruges, where I gave a presentation at the 8th ELEA seminar. I learned there that Phedon Nicolaides will take over Jacques Pelkmans as the head of the economics department.
Alfonso had other, very good reasons.
PS: I just fixed the link to the BSC brochure.
Self promotion
We like to self promote at chillin’competition.
For instance, you will have noticed from yesterday’s post that Alfonso likes to incidentally recall that he works on a pending case against a giant US corporation.
So I take my turn to self promote a little, with a recap on recent and forthcoming chillin’competition-related activities:
- I was in Helsinki with my friend Miguel Rato (Shearman & Sterling). We were invited to deliver a presentation at the 11th Annual Conference of the Association of European Competition Law Judges (AECLJ). With 60 judges from accross Europe in the room (including judges from Luxemburg), Richard Whish, Alexander Italianer and Nick Banasevic on the podium, this was a very challenging talk. I attach the presentation here: Slides – Petit & Rato – Abuse in Technology-Enabled Markets – 11th AECLJ Conference (14 06 12. A paper on “Abuse in Technology-Enabled Markets” is in the making;
- The registration process for the 2012/2013 edition of the LLM in Competition Law & Economics at the Brussels School of Competition is now opened. We have a new brochure in which you will find a number of changes. A teaser: F. Jenny will teach on abuse with JF. Bellis, Alfonso’s existence is now official and several ***** economists have joined;
- We have a GCLC lunch talk this Friday, on the Commission’s review on the rules on technology transfer agreements. Our speakers are Donncadh Woods (DG Competition), Frédéric Louis (WilmerHale) and Paul Lugard (Tilburg Institute for Law and Economics (TILEC) and ICC Commission on Competition);
- Ana Paula Martinez (Levy & Salomao) is the editor of a new, impressive volume entitled Temas Atuais de Direito da Concorrencia with written contributions (in English) from S. Salop, E. Elhauge, D. Geradin, Mariana Tavares de Araujo, Ian S. Forrester and Francisco Enrique González-Díaz. Here’s the leaflet and table of contents: GED_LS-#845180-v1-2012_Brazil_Competition_Book
- I was in Strasbourg yesterday to lecture on IP and competition law at the CEIPI and I will be in Bruges tomorrow to give a presentation at the 8th ELEA symposium. It is a very busy week, like last week… and hopefully unlike next week.
Some very personal views on the College of Europe
Every time we meet for the first time a reader of this blog, we get the question of how Nicolas and I met. Most people guess we studied together at the College of Europe, but that’s not the case. In fact, next weekend Nicolas will be celebrating the 10th anniversary of his promotion, whereas last weekend I celebrated the 5th anniversary of mine (I´m not used to telling the truth here; people often assume that I was there much longer ago –which doesn’t say much about my juvenile looks..- and I always fail to tell them wrong).
With all these current commemorations it seems like an appropriate moment to share some of our views on the College, an institution which elicits all kinds of reactions from different people [an illustration of those reactions: a recent book titled “Intimate Brussels” characterizes alumni of the College of Europe as the evil characters in Brussels and profiles them/us as a much hated secret society (!)]
This post is not entirely competition law-related and we don´t want to bore you, so click here if you’re interested on this long story:
Chillin'Competition 