Relaxing whilst doing Competition Law is not an Oxymoron

Archive for March 2013

Job Application

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Yesterday, one of my LL.M students made the buzz in French press.

President Hollande was apparently in Dijon to deliver a speech on new government-sponsored traineeships for young people without a degree.

Louis Godart, currently enrolled in our ULg LL.M, was in Dijon too.

He managed to hand in his CV to Hollande, and urged him to also help students with a degree, who too face hurdles on the labour market.

For more, see here.

A hat tip to Louis for his brave move. We don’t teach martial arts to our students – shall we? – so I am very curious to learn how he managed to make it through Hollande’s muscle men.

Louis also made a clever move. After all, in a country like France where Governement is omnipresent, the best mailbox to post a job application is that of the President, not that of the private sector.

Finally, a big thank you to Louis for the unexpected publicity for our ULg LL.M. On this, I must stress that the programme keeps improving. We have this year a group of 25 very motivated students, who come from all over Europe. And we’ll soon be appointing a new Professor in IP and innovation law (for the call for applications (in French), see link below;  If anyone’s interested by this, pls drop a line).

Vacance – Charge de cours – Droit de l’innovation et de la PI

Written by Alfonso Lamadrid

13 March 2013 at 7:49 am

Posted in Uncategorized

Antitrust History

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A lot has been written on the history of the EU antitrust rules.

Those familiar with Jean Monnet’s Memoirs know that the wording of EU competition law owes a lot to the drafting skills of George Ball.

But I personnally did not know that the Brussels office of Cleary, the oft-cited n°1 law firm on the Brussels market:

was established in 1960 as a direct consequence of the close relationship between Jean Monnet and former Under-Secretary of State, George Ball, one of the firm’s founding partners and legal advisor to Jean Monnet on the implementation of the Marshall Plan and the drafting of the Treaties of the European Communities.

Caveat 1: this is no advertisement for Cleary.

Caveat 2: this is not another rant at conflicts of interests.

For more on Ball, see here and here.

Written by Nicolas Petit

11 March 2013 at 4:27 pm

Posted in Uncategorized

Microsoft’s contribution to the EU budget

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Today the European Commission imposed a 561 million euros fine on Microsoft (roughly 37 euros per each of the 15 million copies of Windows that were sold in the EU in breach of the 2009 commitment).

As I said in a previous post, I don’t think anyone believes that Microsoft did this on purpose, so the amount of the fine might have come as a surprise to quite a few people (although not to those who participated in Nico’s poll yesterday).

In any case, this is the third time that Microsoft contributes to the EU Budget because of competition related matters. In total, it has paid approximately 2 billion euros.

[Btw, I couldn’t help remembering Neelie Kroes statement after fining Intel 1 billion euros: “Intel´s latest advertising campaign proposes Intel as the sponsors of tomorrow; well, now they are  the sponsors of the European tax payer” (two years ago we nominated the video of this speech to an Antitrust Oscar)].

When one hears about these figures it’s easy not to realize what numbers mean. So we’ve decided to help you become aware of what 2 billion represent:

According to the World Bank there are 41 countries in the world whose GDP is lower than 2.1 billion euros (approx 2.7 billion dollars).

With 2 billion euros the European Union could:

Bail out banks in Cyprus (estimates say that it will cost up to 2 billion);

Pay  for a couple of ambitious science projects (like studying graphene and fighting brain disease);

Buy the full squads of Real Madrid, FC Barcelona or Manchester United to represent DG Comp in the internal football championship;

Buy half of an aircraft carrier (don’t know why they would want an aircraft carrier, or why they would only want half, but I’ve seen more absurd public spending…);

Pay DG Comp’s budget (93,5 million euros) for 21 years;

Develop the atomic bomb (not in today’s money, though; it cost 2 billion back in 1945).

Buy a few Greek islands for its officials to go on holidays (the most expensive one I’ve seen here costs 150 million..). Odd thing, I saw an ad for Bahamas islands on sale, and there is a private islands magazine with a Fall/Winter catalog for islands (!)

Produce all of the 10 most expensive films in history (Pirate’s of the Caribbean, Tangled, Spider-Man 3, John Carter, Harry Potter and the Half Blood Prince, Avatar, The Dark Knight Rises, The Chronicles of Narnia: Prince Caspian, Pirates of the Caribbean: Dead Man’s Chest and The Avengers).

Build the tallest building in the world to host DG Comp (it would be more impressive than the Madou Tower to which it is moving…the Burj Khalifa costed 1.5 billion). For my suggestion on how it could look like, see here  🙂

Anymore ideas??

Written by Alfonso Lamadrid

6 March 2013 at 8:31 pm

Posted in Hotch Potch, Jokes

An Unprecedented Fine

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There’s a big storm coming.

Tomorrow, the Commission will slap  yet another stratospheric fine against Microsoft.

We’re told that Microsoft did not implement the “browser choice” remedy negotiated with the Commission in 2009.

Worst: this is apparently due to an internal communication failure.

Alfonso blogged about this a while ago (meanwhile disclosing his core musical tastes).

Because the Commission understandably wants compliance but may be reluctant to micro-monitor the implementation of settlements, the fine will likely be high.

But how high?

Written by Nicolas Petit

5 March 2013 at 10:47 pm

Posted in Uncategorized

More on antitrust and politics: Interview with CPI

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As some of you may remember, a few months ago I wrote a post here on “Antitrust and Political Stupidity“. Competition Policy International asked me to develop the post for a special issue of the Antitrust Chronicle, which I did one-handedly during my extended Christmas break (the paper is available here). I was then asked to do a follow-up interview with CPI; the interview was published today (click here for the version in CPI’s web).

Asked about whether I was being too optmistic in the paper, I started my response saying that “my paper was written during the Christmas break, and it is not much more than a Christmas tale, a superficial exercise of wishful thinking” (see below for the complete answer). Little did I know that the mailing that was sent today to some thousands of people would summarize the interview saying that: “Lamadrid says his paper is ‘a superficial exercise of wishful thinking,’ and he tells CPI why“. So, here I am, promoting my work by saying that it’s really not any good (between us: it’s not a masterpice, but it’s somehow original and maybe not as crappy as my own quote suggests…). Man do I really need to work on my self-selling skills….  😉

If anyone’s interested, you can click here to read the full interview:

Read the rest of this entry »

Written by Alfonso Lamadrid

4 March 2013 at 6:39 pm

WE readings

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Some propaganda:

1.Ethique et conflits d’intérêt en droit européen de la concurrence:  A 1,5 pager, a little controversial, and for good reason : upon inquiry, there is no standard ex post “recusation” procedure in EU competition proceedings. So how  to dismiss a conflicted decision maker? And before this, how to know he is conflicted? Those weird findings, coupled with other recent developments (the ongoing revolving doors investigations of the Ombudsman)  prompted further research on ethical rules in EU competition law. Will likely dig deeper in the upcoming months. An English translation of this edito is in the pipeline, and due to appear in ECLR

2. “Industrial Policy and Competition Enforcement: Is There, Could There and Should There Be a Nexus?“:  co-authored with N. Neyrinck. This paper makes a number of novel points. One of them is that under current legal standards, some transactions (e.g. mergers) that are deemed compatible when they originate from EU-owned firms, may be forbidden when they originate from non EU-owned firms. The explainer: efficiencies generated by EU-owned firms benefit more directly to EU consumers than efficiencies arising from non EU-owned firms. Another point of the paper is that the EU industrial policy agenda (and all the thinking that went into this) should inform DG COMP’s priority setting policy. This paper was presented at the 2012 GCLC annual conference and will be published as part of the conference proceedings.

3. “New Challenges for 21st Century Competition Authorities“:  You guys know this one. A modest effort to identify some of the hottest issues in contemporary competition enforcement. The paper does not pursue great academic ambitions, but make a number of original points (on the use and abuse of settlements/commitments in particular). It will be published in a forthcoming issue of the Common Law Review and was presented at a conference in Hong Kong in October 2012.

Written by Nicolas Petit

2 March 2013 at 7:01 pm

Posted in Uncategorized

European Commission prohibits Ryanair/Aer Lingus deal

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Last Wednesday the Commission confirmed that it has decided to prohibit -for the second time- the proposed merger between Ryanair and Aer Lingus merger (click here for the press release). This is the fourth prohibition decision adopted under Commissioner Almunia, and the 24th in the history of EU competition law.

The decision has not yet been published. We had assumed that while we waited for it we could at least report on Michael O’Leary’s (Ryanair’s CEO) reactions. However, Mr. O’Leary has not made any public statements of the kind that we were expecting (remember his analogy between the European Commission officials and North Korean economists?  🙂

Ryanair has issued a press release in which it argues that its offer “was supported by an historic and unprecedented remedies package that included not one, but two upfront buyers (BA/IAG & Flybe) to take over approximately half of Aer Lingus’ short-haul business (…) The transfer to these upfront buyers of Aer Lingus’ business on the 46 crossover routes identified by the EU Commission, together with the relevant slots, aircraft, personnel and branding, was ensured by binding, irrevocable commitments by those upfront buyers including Board approvals”. In Ryanair’s view, “[t]he history of the EU’s treatment of Ryanair’s two offers for Aer Lingus conclusively proves that this prohibition is a “political” decision to pander to the vested interests of the Irish Government (a minority 25% shareholder in Aer Lingus) and is not one that is based on a fair and reasonable application of EU competition rules or precedent airline merger approvals in Europe”.

We have no clue on whether the allegations over the political motivations of the decision are founded or not. But politics aside, this case resuscitates some tricky substantive/institutional questions. The nature and scope of the remedies proposed by Ryanair was indeed pretty substantial, and arguably unprecedented (Ryanair had even pledged to give 100 million to Flybe to ensure its sustainability) so, query:

Are EU merger control rules on when an up-front buyer is a suitable one sufficiently clear? What discretion should the Commission enjoy in this regard? Ryanair has announced that it will appeal the decision before the General Court, so we should expect to have some answers to these question soon.

Written by Alfonso Lamadrid

1 March 2013 at 4:51 pm