Archive for August 2012
On competition and blogs
Competition seems to be moving moving to the blog arena.
Some of you may recall that a while ago we discussed the case of a Spanish professor who had been sued for accusing a Promusicae of anticompetitive behavior (see here). We are glad to report that the blogger has won the case, thereby establishing a good precedent to shield Nico and myself from possible similar attacks 😉
Another interesting blog-related development has taken in the U.S. In the context of a high-profile patent infringement case between Google and Oracle, district court judge Alsup has ordered these companies to diclose the identity of bloggers, journalists and consultants that they pay for favorable opinions or consultancy work (for more, see here or here).
This decision has been triggered by the revelation that Florian Müller a well-known IP blogger (from the blog FOSS Patents) had been hired by Oracle shortly after the trial begun.
This unprecedented move should cast light upon the problem related to the lack of transparency surrounding blog content. As the influence of certain blogs grows, it is necessary to start thinking whether the ethical rules governing traditional journalism should also apply in this area. It has certainly led Nicolas and myself to reflect on the way we want to do things.
In our case, we don’t pretend to be impartial informers. We are simply two young professionals who voice out subjective opinions in public to entertain and/or to spur some hopefully interesting debates. We see Chillin’Competition more like a diary than like a newspaper story or an academic paper, and therefore don’t feel under the pressure of being always perfectly informed, accurate, exhaustive and objective about what we write. Of course we try to do our best and to be as technically rigurous as possible, but we’re not afraid of posting first thoughts on some topics, even if our views may evolve afterwards (remember our disclaimer?) 🙂
The small dimension of the competition law community makes it practically unfeasible to continuously disclose personal links. We often know quite well, or are friends with, in-house counsel, external counsel, Commission officials, clerks or Judges involved in all sides of the cases on which we comment here. Disclosing friendship or other informal ties with the people involved in the cases on which we comment would be tremendously burdensome (and it would look a bit weird too…). As said above, we don’t pretend to be always objective. In fact, we generally try to be subjective, but we develop our reasons and we expose them to public criticism. For the time being, our policy is to indicate only the cases in which we are personally involved. Also, where we have written about a case and have later become involved in it, we have also publicly stated it. However, we are, as always, open to comments and suggestions on how to better do what we do.
Blogging law is getting increasingly complicated. Nico: we need a lawyer.
Light menu
Since these days we’re read mostly by those unfortunate people not enjoying August holidays, we’ve decided to publish a few light posts. This one is particularly light:
Some of you have conveyed to us your surprise about the fact that -despite our frequent attention to food cases (an attention which was prompted by the landmark endives case)- we missed the news about confectionery manufacturer Haribo being sanctioned by the Bundeskartellamt for exchanging competitively relevant information (see here).
The case actually appears to be a very interesting one (thanks to Gavin Bushell for pointing our attention to it). Not knowing more about it than what the press release says, the Bundeskartellamt’s application of two instruments developed for cartel cases (i.e. leniency and settlements) in a stand-alone exchange of information case appears to confirm the concerns I (I use the singular because Nico and I disagree on this) expressed in previous posts (see here) about the possibility of stand-alone information exchanges suddenly being treated as cartels. I stick to what I said back then: “enlarging the legal concept of cartel so as to encompass information exchanges, thereby applying to them all the instruments that were developed and justified in the framework of the fight against cartels is bad policy and a dangerous development”.
In our defense, we have to explain that there is actually a reason why we missed these news: it’s bikini time. We’re healthy guys, and therefore a few weeks ago we decided to get sweets and carbohydrates out of our enforcement menu saga. You may remember that the last of our post on competition and food related to shrimps; today we have a mushroom side complement (all very proteic and Dukan diet compliant as you can see): last Wednesday a U.S. federal judge sanctioned a company in multidistrict litigation alleging a conspiracy to hike mushroom prices, holding the mushroom seller liable for an affiliated distributor’s destruction of documents sought by the plaintiffs (see here) (Thanks to José Carlos da Matta for the pointer!).0
By the way, one our readers particularly liked the shrimp post; Eva, if you like mushrooms too we suggest you try this (pictured above).
Getting serious now, the fact that we’re recurrently joking about food cases is not only a consequence of the limited scope of our sense of humor, but is made possible by food having become an enforcement priority for competition authorities. I, for one, am currently involved in a few food-related cases. In fact, European competition authorities seem to be competing as to which one is toughest on food. The evidence: check out the European Competition Network’s very interesting report on its members activities in the food sector.
Competition pills
[This is not a joke]
The Spanish Competition Authority (“CNC”) has entered the “pharma” business by launching a new product: “Competition pills”.
You read well. The CNC is giving away packages that ressemble medicine packages (in reality they’re full of sweets…). The packages include an informative leaflet of the sort that one also finds accompanying pharmaceutical products; this is one example of what these leaflefts say:
Competition “alleviates the symptoms derived from the congestion of the economic system, by eliminating monopolies and barriers to entry“.
“Especially recommended for cases of economic limpness and ciclical crisis“.
“Thanks to its formula and active principles, Competition produces beneficial effects on the consumer under the form of inferior prices or greater abundance, variety and quality of products, with the ensuing improvement the welfare of society’s organism“.
The leaflets included inside the “medicine package” also explain what the functions of the CNC are and what it its that the institution does in practice for the protection of competition. They advise to “maintain the product at the reach and sight of public administrations, public organisms, private companies and consumers”. They also warn about the possible side-effects of Competition: “it is foreseeable that it may cause reactions on the part of pressure groups and lobbies”, for those cases, the CNC recommends to “increase the dosis of Competition“.
In sum, the leaflet emphasize that “without Competition, the health of the economic system is at risk“.
Interestingly, the CNC’s [looking for the right adjective…….] “original” initiative is aimed at increasing its visibility and intends to make known the importance of its functions precisely at a time where a draft new law that could radically change the institutional model is in the pipeline.
Chuck Norris AT Fact of the Day
Antitrust agencies can eliminate all consumer harm. Except those inflicted by Chuck Norris.
Chillin'Competition 