Chillin'Competition

I love commitments decisions because they are a quick read.

But I also hate dislike them because they leave the reader angry hungry for more.

Some evidence: in the E-Books case, the effect on trade condition was deemed fulfilled under the simplest possible sort of analysis:

(91) The Commission’s preliminary view was that the effect on trade of the concerted practice was appreciable given that the conversion to the agency model by the Four Publishers and Apple formed part of a global strategy that was intended to be,andwas,implemented in the EEA.

 

(92) In particular,given the nature of the product in question, the position and importance of the undertakings concerned and the scope of the agency agreements entered into between each of the Four Publishers and Apple in the United Kingdom, France and Germany, the pattern of trade was potentially affected by the concerted practice which covered a substantial part of the EEA.

With this kind of reasoning, everything may affect trade between Member States (though I understand Alfonso has a dissonant view on this).

The reference to the “nature of the product” is in particular inconsistent with previous findings that geographic markets for books are national or subnational (see Case No COMP/M.2978 LAGARDERE/NATEXIS/VUP, §296).

But there’s other fish in the sea: the E-Books decision is fascinating in that it exemplifies how, with parties’ consent, agencies manage to bypass the most basic evidentiary hurdles required for antitrust intervention.

Beyond the effect on trade condition, the decision adduces only light proof of the alleged horizontal “concerted practice” amongst publishers. I doubt this is Woodpulp or CISAC’s proof.  As the Court recalled in those cases, heavy evidentiary thresholds apply in concerted practice cases.

More importantly, the Commission’s theory of harm is incomplete. In particular, the Commission does not explain if, and how, the publishers could have boycotted Amazon – their biggest client – under a collective refusal to supply (in Bronner sense) and reserved E-Books to Apple. And this is important, because absent this, the MFN scheme could not possibly have the anticompetitive effect foreseen in the decision.

Last but not least, the decision is a good example of antitrust sorcellery, in that it it turns the adoption of agency agreements, i.e. practices that are per se lawful practices by 101 TFEU standards, into a theory of anticompetitive harm.

To the Commission, article 9 decisions sound like Hetfield’s epic lyrics:

“I’m your truth, telling lies
I’m your reason alibis”