Relaxing whilst doing Competition Law is not an Oxymoron

Archive for September 2013

The Case for some Formalism in Rules of Competition Law

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Our economist friends often believe that legal formalism is useless.

I have personally complained about the bad influence that formalistic lawyers had in competition proceedings.

Now, “assume” an economist had written the Treaty rules on Competition. This would give something like:

  • Article 101 TFEU: Anticompetitive coordination is unlawful.
  • Article 102 TFEU: Anticompetitive foreclosure is unlawful.

With such loose rules, the economic cost of enforcing the law would skyrocket. And so would the economic cost of complying with the law.

The sole saving achieved would be the ink saved in printing and reprinting the Treaty.

Or why too little legal formalism is economically inefficient.

Written by Nicolas Petit

30 September 2013 at 4:08 pm

Posted in Uncategorized

Twilight of the Idols

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The Van den Bergh Foods case, aka the Ice Cream case, if often cited as one of the best Article 101 TFEU judgments ever handed down by the General Court.

Many praise its modern, unformalistic approach of vertical ties.

They like its focus on the economic magnitude of the foreclosure yielded by the freezer exclusivity clause.

I too have rallied this optimistic interpretation. In a case note published 10 years ago, I had laudated the General Court for its analysis.

As with novels, I should have applied the rule never read again.

Despite economic improvements in judicial reasoning, the Ice Cream judgment is fraught by several unfortunate logical shortcuts.

A quick reminder: the crux of the case was that Unilever, the largest player in the market (and the incumbent) had given freezer cabinets for free to retailers and forbidden them to store non-Unilever ice creams in those cabinets.

This, in the Commission’s view, yielded anticompetitive foreclosure, in particular in those shops where only one freezer cabinet could be stored because of space constraints.

Interestingly, the typical contract with retailers could be terminated flexibly, under a 2 months notice. Unilever thus made the rather convincing counter argument that as efficient rivals – those who could too offer cabinets for free – were not foreclosed from the market.

The GC and the Commission nonetheless based their case on the fact that despite open termination opportunities, there was a “reluctance” from retailers equipped with Unilever cabinets to terminate their contract.  As a result of retailers’ reluctance, rival ice cream producers were harmed.

On cursory analysis, the “reluctance” story was reasonably plausible. But the problem is that the evidence adduced by the Commission and the GC to prove reluctance was quite weak.

Let’s take a look: the reluctance argument seems wholly based on the unproven assumption that retailers who would terminate their Unilever contract would no longer be able to procure Unilever products. Hence, retailers just decided to stay with the contract, as Unilever products were “must store” goods.

But on the facts, the decision and judgment did not exclude that retailers remained free to use a rival freezer and still procure from Unilever without terminating the contract in the first place.  This, to me, is a major flaw of the decisions. Retailers could just have trashed the Unilever freezer or tell Unilever to recover it.

An alternative is that the Commission and the GC may have assumed that Unilever would have de facto stopped supplying it products to retailers using a rival freezer cabinet. But this would have been a stand-alone, separate infringement which would have deserved proof under the Brönner standard.

Surely, it may be that the Commission and the GC had in mind a “behavioral” reluctance theory, similar to those used in the Microsoft Media Player and Browser cases or in the ongoing Google investigation.

The idea would have been that retailers were content with their Unilever cabinet, and because of some statu quo bias or of hassle costs, they just reclined on changing freezers.

Again, however, no corroborating evidence of biases and retailers’ ineria appears in the decision and judgment.

A bit disappointing, for a judgment that has been elevated to the hall of fame of competition case-law. But overall, a good ruling.

Written by Nicolas Petit

24 September 2013 at 7:41 pm


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This position is for a period of one year.

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It offers teaching and publication opportunities.

If you are interested, please send me your CV at



Written by Nicolas Petit

23 September 2013 at 10:03 am

Posted in Uncategorized

The ultimate competition law quiz

with 17 comments

It’s been quite a while since our last quizz (see here, here or here for some of them).

In a recent book review I wrote: “Ask most competition specialists about what a “restriction of competition” is and you will get a surprising variety of theories, and most likely some striking silences“.

So this is an empirical test. The question should be simple for anyone geek enough to read this blog:


The best one paragraph response wins. You can write your definitions as comments to this post. The one who gets the most “likes”/”thumbs up” by October 1st wins (and this includes both the blog’s homepage and the LinkedIn group.

This time we’re raising the stakes: instead of a round of beers, we offer to invite the winner of this quiz (+ a guest) to either lunch, dinner or an open tap of beers.

Low participation confirms my point (that’s a smartass way of turning this into a win-win situation)  😉

Written by Alfonso Lamadrid

20 September 2013 at 3:37 pm

Posted in Polls and quizzes

Android, Google and bundling: some follow-up thoughts

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[By Pablo Ibañez Colomo (LSE)]

The following thoughts were inspired by Alfonso’s recent post on bundling allegations against Google. As usual, it is tightly argued and persuasive. I wish competition authorities took such points into consideration when assessing tying and bundling claims. My objections are of a different nature. The fact that I agree with most, if not all, of what he writes does not mean that his points would be conclusive or even relevant in practice after the Microsoft saga. More than anything, Alfonso’s post reminds one (or at least me) of the uncertainties that remain in the field of Article 102 TFEU even after the adoption of the Guidance Paper.

Alfonso starts by wondering whether the complaint brought by Google’s rivals involves a bundle in the first place. Following the GC judgment in the first Microsoft decision, I would be tempted to reply by saying that anything under the sun can be constructed as a bundle or, put differently, that the legal construction around third party claims need not make sense for Article 102 TFEU to apply. If a tying claim is valid even when nobody wants an operating system without a media player or a web browser, it probably follows that the plausibility of the bundling claim would not be – unfortunately, may I add – a conclusive aspect in the hypotheticals he discusses.

He goes on to argue that Google Play is not the only means through which one can download applications. I am sure more than a reader reacted to this argument in the same way I did. Could not one also claim that it is possible to download web browsers or media player and that the tying of these applications with an operating system are unproblematic as a result? Well, of course, but this fact did not prevent the Commission from taking action against Microsoft not once but twice. All that remedial action would require is an analysis of consumer behaviour allegedly inspired in behavioural economics (the flavour-of-the-month that I fear most, by the way).

If the above arguments are not decisive, we are left with the issue of foreclosure (the ‘everybody does it’ and the ‘business rationale’ arguments would not be relevant even before the wisest of competition authorities, as what matters in contemporary competition law, or so I want to believe, is not the motivation behind the behaviour, but its effects on the market). Besides the fact that foreclosure is plain irrelevant in tying cases according to the General Court, I will mention that, according to what I read the other day, Android’s market share is approaching 80%. This does not mean in any way that Android is dominant, let alone superdominant (and, again, very sensible arguments can be developed to show why this is not the case). But we all know strange things happen to law and policy when firms reach such market share levels.

What conclusions do I draw from the above? It seems to me that self-restraint is the only limit to the ability of the Commission to interfere with product design in high-technology industries. The second reflection relates to the behaviour of complainants. They cannot be blamed for taking advantage of the confusion created by the Microsoft saga around tying and bundling (i.e. for behaving opportunistically). One could even go as far as to claim that this saga created the expectation that the Commission will intervene when a firm’s market share approaches or exceeds 80%.

Written by Alfonso Lamadrid

16 September 2013 at 8:44 am

A true Belgian story

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When did the new Belgian competition Act enter into force?

If you run a Google search most results (notably a few dozen law firm’s newsletters saying exactly the same things) will tell you that it did on September 1st, 2013.

Wrong answer.

You can’t blame them, though. On August 30th The Belgian official journal (Moniteur Belge) published a Royal decree providing that the new Act would enter into force on the first working day following the said publication (that is, on September 1st).

However, it seems that the Royal decree wasn’t really Royal, because no one realized that the King had not yet signed it (apparently he was on holidays, elephant hunting, or doing whatever it is that Belgian Kings do), and that therefore it was devoid of legal effects.

That’s why on September 4th a new Royal decree was published on the official journal stating that the publication of the previous Royal decree (actually there were two of them) shall be considered null and void (“il y a lieu de considérer la publication des deux arrêtés royaux susmentionnés comme nulle et non avenue. Ces arrêtés ont été retirés avant leur signature”).

And then, on September 6th, yet another Royal decree was published providing that the Act would enter into force on that very same day.

So, between September 1st and September 4th people thought that the Act had entered into force, when in reality that wasn’t the case.

We hear there were hearings held in those days in which lawyers were pleading on the basis of the new Act, but were told that they were misinformed.

True story.

Written by Alfonso Lamadrid

12 September 2013 at 11:58 am

Posted in Hotch Potch, Jokes

Convergence Rule – A Spanish Example

with 4 comments


The convergence rule of Regulation 1/2003 (Article 3(2) sets that:

The application of national competition law may not lead to the prohibition of agreements, decisions by associations of undertakings or concerted practices which may affect trade between Member States but which do not restrict competition within the meaning of Article 81(1) of the Treaty, or which fulfil the conditions of Article 81(3) of the Treaty or which are covered by a Regulation for the application of Article 81(3) of the Treaty“.

Often, I have struggled to find concrete examples of such situations.

Our friend Miguel Troncoso Ferrer (Gomez Acebo Pombo) has offered us a very good illustration of this.

A recent amendment to the Spanish Hydrocarbons Act sets out a blanket prohibition of non-binding price recommendations in distribution agreements in the hydrocarbons industry.

This prohibition covers agreements below the 30% market share threshold.

It thus prohibits conduct which is covered by “a Regulation for the application of Article 81(3) of the Treaty“.

And this amendment purports to regulate competition (according to the Preamble of the new statute).

It thus violates EU law. The full analysis is available here: Analysis_On the compatibility with Eu Law of the new Section 43 A

In light of the Italian Matches case-law, publics authorities, national courts and firms can disregard this legislative provision.

@Alfonso: an apology. I did not mean to promote of a rival shop.

Written by Nicolas Petit

11 September 2013 at 5:45 pm

Posted in Uncategorized