Relaxing whilst doing Competition Law is not an Oxymoron

Archive for December 2012

Best Xmas e-card so far

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A quick post.

Our email boxes are flooded with Xmas e-cards those days.

My preferred so far is Cromo’s (Crowell & Moring). Check it out, it is really nice.

Above, the Brussels School of Competition‘s Xmas e-card.


Written by Nicolas Petit

21 December 2012 at 10:33 am

Posted in Uncategorized

Antitrust law blogs

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Competition law blogs are mushrooming. This means that Chillin’Competition is now subject to intense competitive pressure, and that Lindsey McSweeny will start having problems to pick the monthly posts for CPI’s Blogs o’ Blogs.

Some of you might remember that when Nico falsely announced that we were done with Chillin’Competition a new blog called Chilled Competition was rapidly created. Its first (and only) post was entitled “Low barriers to entry”. And it was very right: ayone can enter this market; in fact, as you will see below there are already a few entrants challenging incumbents.

Kartellblog. We have the intuition that it’s a great blog. Unfortunately we cannot confirm it because neither of us can read German…

Prof. Sokol’s blog: The best source of information for new antitrust-related publications. We don’t know how he does it, but he finds out about almost anything that is published.

The Antitrust Hotch Potch. As you know, prior to starting Chillin’Competition Nicolas used to run the Antitrust Hotch Potch with Damien Geradin. Damien kept the blog and the trademark and has since then re-started it (about 3-4 times in the past few months) ūüėȬ†Damien has an admirable ability to surround himself with smart people (like Nico back in the day) and this time he has been joined by young Covington associates, namely John Wileur, Christos Malamataris and Jennifer Boudet. It’s a great initiative, so good luck!¬†We will be happy to generate some debate with them (a piece of humble advice: in our experience it’s important to identify¬†the person writing¬†each post!).

Kluwer Competition Law Blog. This one features very good stuff. It currently has more than 20 co-authors (including people who we know well and like, such as Thomas, Damien, Jos√©, Gavin….¬†). In spite of the different styles it generally features very interesting stuff. The only thing we miss is more regular updates.

Competition Bulletin. Written by 10 authors (Blackstone Chambers barristers + Oke Odudu) this blog features very interesting stuff, notably on UK competition law. I should have mentioned them here before (my apologies for the delay).

Truthonthemarket. It not only covers antitrust issues, but also wider economic or IP-related issues. Its posts are always timely and insightful.

Derechomercantilespana. Written by Jes√ļs Alfaro, who does an amazing job covering all sorts of corporate and¬†competition related development several times¬†a day. How he¬†gets the time is beyond me.¬†The content ranges from a Judgment by¬†a lower Court in a¬†tiny village in Spain, to comments on EU¬†to good music¬†¬†Non-spanish speakers won’t be able to enjoy it though.

– There are also a handful of blogs covering jurisdictions other than the US and the EU.¬†¬†Har√ľn G√ľnd√ľz once asked us to help advertise TurkishCompetitiionBulletin (well done!). Lalibrecompetencia is an excellent source of info on Latin American issues.

Chillin’Competition: Written by two freak weirdows. One is a University Professor who spends his life in a car and likes to have his pic on his browser’s address bar. The other is a¬†lawyer who somehow tricked¬†his firm into letting him¬†spread nonsense in the public domain.¬†We frankly would not recommend you to ever read it. For each decent post they write there are¬†dozens of nonsensical ones.

Written by Alfonso Lamadrid

20 December 2012 at 12:43 pm

Chimerical Remedies

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Last week-end, I watched “Inception”¬†again.¬†This is a terrific movie.

And it has an antitrust angle. The story is about a dominant energy conglomerate (Fischer industries if my recollections are correct).

And this dominant firm threatens to eliminate its main rival from the market.

The later thus hire someone to implant into the subconcsious of the heir of Fischer industries’ CEO the idea of disintegrating his father’s company (the father passes away in the beginning of the movie).

Now, the antitrust geek that sleeps in me cannot help but thinking that in XXVth century competition law, agencies will use this form of remedial intervention as an alternative/supporting device to conventional divestiture orders.

And surely XXVth century lawyers will look for a concept to denote for this new type of remedies. I’ll likely be dead and this blog will no longer exist (yet who knows?), but here’s my early take: why not talk of “chimerical remedies“, besides structural and behavioral remedies.

An alternative would be “Freudian¬†remedies”.

If you have other ideas, please comment on this post.

Written by Nicolas Petit

18 December 2012 at 5:19 pm

Posted in Uncategorized

7th Junior Competition Conference – Private Actions

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Our friends David Bailey (Brick Court Chambers), Christopher Brown (Matrix) and Sarah Long (Allen&Overy) are throwing a nice antitrust conference in London on 25 January 2013. We repost hereafter the cover email they sent us:

The 7th Junior Competition Conference

Reforming private actions in competition law

at the Competition Appeal Tribunal

on Friday 25 January 2013 at 2:00 pm

This conference is open to all those involved in UK competition law, economics and policy, whether in practice, in public service or in academia. Admission to the conference is free. The conference programme can be found here

As in previous years we anticipate that demand will be very high. Places will be given on a ‚Äėfirst come, first served‚Äô basis: for those interesting in coming, please contact us as soon as possible at¬†

Due to the popularity of the event and capacity constraints, please note that the following conditions apply:

    • Attendees should be ‚Äújunior‚ÄĚ in the sense that we do not anticipate attendance by partners of law firms or economics consultancies, senior barristers, senior officials in public service or senior academics.
    • To ensure that there is a good cross-section of the junior ‚Äėcompetition community‚Äô, we may have to limit the numbers of attendees from any one organisation.
    • If you are given a place and subsequently discover that you are unable to take it up, please could you notify the organisers as soon as possible, so that we may give your place to someone else.

Written by Nicolas Petit

17 December 2012 at 7:00 am

Posted in Interesting Links

Breaking news – Chillin’ leaks

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Following the political turmoil caused by Mario Monti’s announced resignation, and in order to achieve a compromise solution to Italy’s political deadlock, Silvio Berlusconi has been nominated as the new Italian Judge before the European Court of Justice.

In a press release issued a few minutes ago, the Italian Government states that:

Berlusconi is the ideal candidate for the job: there is no other Italian citizen with more experience in Court proceedings, and his contribution to European criminal law is beyond question“.

Chillin’Competition has learnt that Mr. Berlusconi has already initiated the recruiting process for his new clerks. We have had exclusive access to a picture taken outside the villa where the interviews are being held; the¬†picture¬†conveys the¬†sense of excitement¬†and urgency¬†prevalent among¬†candidates to the job¬†(see here).

The content of the tests remains confidential, but our sources tell us that there will be no written part.

Chillin’Competition’s Christmas contest

This is obviously a joke, but it’s also the opening post for a new game. Some of you certainly are (or should) be familiar with sites such as The Onion (Spaniards woud rather follow¬†Elmundotoday). We want to play after them. That’s why we are setting up a contest for the funniest competition law fake news¬† ūüėČ

We are giving out a special pack of Christmas delicacies from my family’s bakery¬†to the person who sends us the funniest fake news. We don√Īt care about length: they can be one page, one line, even just a headline could do the trick.

We’ll hold a public vote next Friday.

You can get some inspiration from some of our previous fake news, such as: Reactions to the endives cartel; The post of a fresh summer day; or An Antitrust Challenge to God.

Written by Alfonso Lamadrid

14 December 2012 at 4:32 pm

Antitrust Clone? Or Why the Google case is Stronger than the Microsoft Case…

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Despite intense media coverage, little has filtered on the content of the EU Google investigation.

That said, the fragments that leaked in the press led me to draw a puzzling analogy: would the ongoing EU Google case be a rerun of the Microsoft tying cases (2004 and 2009)?

Take a look: in Microsoft, the Redmond giant was accused of using its dominant facility – Windows OS for PC – to preferentially distribute related softwares – WMP and IE – and exclude rivals from those later markets. And this strategy could work effectively because consumers¬†are lazy animals¬†often satisfied with default or automatic settings. For various reasons – which included barriers to¬†searching, choosing, and installing a competing¬†software which could stem from a lack of¬†technical skills or simply because of hassle costs – the Commission¬†explained that users only rarely looked for better alternatives. This phenonemon had been labelled “end-users’ inertia“. For more on this, see my paper with my assistant N. Neyrinck.

Now, ¬†the search discrimination allegations levied against Google look strikingly similar. To frame them simply: Google seems accused of using its dominant facility – its well-known search engine – to preferentially display links to related services – Google maps, Google News, Gmail, Google Finance, Youtube, etc. – and exclude rivals from those markets. Interestingly, a key aspect of the theory of harm seems based on the fact that users disproportionately click on the first links displayed by Google’s search engine, and only rarely click on links that rank lower (see chart below). In other words, search users are also lazy creatures¬†who fail to compare the full range of alternatives displayed on the screen. A study found on the web suggests that¬†94% of users click on a first page result and less than 6% actually click to the second page and selecting a result displayed there.


But, there’s a key, critical difference between the two cases. In so far as the¬†Microsoft case is concerned, offering pre-installed related softwares was a natural business strategy for MSFT. After all, the OS and related sofwares – which came for free BTW – are complements. The pre-installation of such softwares enriched the functionality of the OS, which was in the consumers’ best ¬†interest. This argument, which has been made time and time again ties in with the traditional shoe&laces/car&radio metaphors. But what is more is that in the browser case, the pre-installation was a necessary evil. Absent a readily available Internet browser, consumers indeed could not access the Internet and in turn download competing software. Now, some may counterargue that the problem stemmed from the fact that the pre-installed softwares were Microsoft’s own products. But how could it be any different? Given the number of complementary softwares running on an OS, and the myriad of alternatives for each software, it would be all to weird, and possibly unworkable, to enjoin dominant software companies to pre-install competing products on their own motion: how to select them? in what range? on what terms?

In the Google case, however, the preferential ranking of Google’s related services is NO natural business strategy. Rather, the allegation concocted by the complainants, and possibly endorsed by the Commission, is that Google¬†artificially fiddles with its algorithm to display links to its own related services on top of search results pages. In the “but for” search engine world – i.e. absent algorithm manipulation – Google’s related services would not systematically over-rank competing services (yet consumers would still enjoy links to complementary services). ¬†Contrary to Microsoft, there is here no clear objective, natural justification to what Google is allegedly doing. This, in my opinion, makes the Google case different from, and possibly a tad bit stronger than, the Microsoft case.

PS: With this background, I feel a sense of compassion for Microsoft’s lawyers. ¬†Since 2004 and 2009, they must be in real trouble, ¬†trying to understand how, and to what extent, complementary softwares can be pre-installed on Windows.

Written by Nicolas Petit

13 December 2012 at 11:29 am

On Beer and Competition

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There’s competition policy everywhere (Alfonso was there before BTW).

Last Saturday, at the Grain d’Orge – in passing, the best blues music bar of Brussels – I was confronted with a real-life example of a deadweight loss.

Orval, the famous brewery that produces the eponym Trappist beer is currently reducing, and in some cases has stopped, supplying  domestic Belgian retailers (i.e. bars and other retail channels).

The explainer: Trappist beers are a very trendy export product. They now sell at comparatively higher prices in big metropolis like New York, Hong Kong, etc. Orval, which is reported to have fixed short-term capacity, has therefore decided to prioritize supplies towards high price, export markets, and to limit quantities sold in Belgium. Belgian bars and restaurants, whose reservation price still remains superior to Orval’s costs, are thus excluded from consumption as in the textbook model of monopoly pricing.

Interestingly, it seems that some quantities of Orval can be sourced on a secondary market, where bars with surplus resell to other bars.

Is this refusal to supply akin to unlawful abuse? Undeniably, a funny question, which could be an exam topic for my LL.M students. Market definition on such a¬†highly differentiated product market is not straigthforward. And whilst this type of refusal to supply does not seem to fall within the good old ‘essential facilities‘ doctrine, it has exploitative effects which in theory are caught under Article 102 TFEU.

Written by Nicolas Petit

11 December 2012 at 7:00 am