Chillin'Competition

During his presentation last week, Alfonso shed some light on why the Commission was so eager to settle abuse cases in the high tech sector. In brief, he argued that the Commission uses commitments decisions because it does not know how to handle those cases under the current Article 102 TFEU standards. Settlements arguably offer a convenient exit route, because remedies are brought to the table, and the Commission avoids the risks of annulment before the Court.

Similarly, in a comment a few weeks ago, Adrian made the following observation:

“Isn’t it because the EC shies herself away from building a rather complex novel case by reaching the compromise of commitments? And isn’t it the trend lately that the EC is less prone to take the risks of probing unwalked cases and prefers to plea bargain?!”

I quite like this judicial avoidance theory, not least because it also has a strong managerial angle. When DG COMP is taken to Court, the Legal Service normally deals with the case. But DG COMP is not entirely out of the picture. The case-handlers must indeed brief the agents of the Legal Service, and assist them throughout the proceedings. In other words, important human resources from DG COMP are diverted from case-handling to litigation. And this is somewhat disruptive from an enforcement perspective.

Now, this brings me to the substance of this post: we often are prompt to talk of cases as victories or failures either for the Commission or for the parties. On this blog, for instance, we have often written that the Commission had won (or lost, as the case may – more rarely – be) cases in Court. Whilst this language is clearly inappropriate from a formal standpoint – annulment proceedings are not trials against the Commission, but against decisions (“un procès à un acte” in the words of French administrative law) – it also shrouds that the Commission may “gain” when its decisions are set aside. In hindsight, for instance, the Airtours v. Commission case can be interpreted as a big win for the Commission, because it helped those in the Commission willing to adopt refined legal tools for merger analysis (amongst other things, the Guidelines on horizontal mergers) and it ushered in an unprecedented internal administrative reform that was praised by the whole antitrust community.

This reflection sprung to mind today when I read again the General Court’s judgment in T-427/08, CEAHR v. Commission. In this case, the Court quashed a Commission decision that had rejected a complaint out of market definition arguments. In essence, the Commission was arguing that the market for spare parts of luxury watches could be conflated with the primary market for luxury watches, and that all spare parts for luxury watches belonged to the same relevant market regardless of the brand. The General Court disagreed (rightly in my view), and forced the Commission to investigate the complaint. The General Court held that the Commission had not proven that a price increase in the secondary market would have led consumers (i) to switch to other secondary products; and (ii) to switch to other primary products. I note here in passing that contrary to routine decisional practice, the Commission was supporting here a very wide market definition.

Interestingly, the CEAHR v. Commission judgment – which had been at the time described as a big setback for the Commission (including by myself) – has served the Commission to an unexpected extent, providing it with useful ammunition to craft new abuse of dominance cases. The best proof of this is perhaps the IBM Mainframe case. In this decision, the Commission relied extensively on CEAHR v. Commission to suspect IBM of dominance on the  markets for “inputs needed in order to provide maintenance services to IBM mainframes which cannot be sourced outside IBM” (see §24 of the Decision).

The upshot of the above point is that behind the Commission’s judicial misfortune, lurk possible advances for EU competition law, including some that benefit to the Commission itself. This, in turn, should prompt us to stop talking of cases in terms of victories and defeats. Otherwise, as mentioned by Cedric Argenton last week at the same lunch talk, we will witness less and less standard Article 7 decisions, and a propagation of Article 9 decisions which insulate the Commission from judicial review and yield only little, if no, guidance on the substance of the law.