Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for November 2013

XVII edition of the EU and Spanish competition law course

with one comment

For 16 years now Luis Ortiz Blanco has been directing a top-notch competition law course in Madrid, which is actually where Nico and I first met.  I followed this program as a student quite a few years ago, have lectured on it since then, and last year I started co-directing it together with Luis (which comes handy as a justifications to travel to Spain a bit more).

The line-up of more than 50 high-profile guest speakers who come every year from all over Europe to enjoy Madrid lecture in Madrid is a true Who’s Who of EU competition law experts. Moreover, the 115 hours of scheduled classes allow for a more detailed coverage than that offered by many other competition law courses on the market. About half of the course is lectured in English. Price wise the course is unbeatable: full registration is available for only 3,000 euros.

The final program for each module and seminar has yet to be confirmed, but the overall structure and dates have been set, so I’ve included the info below. Anyone interested can register both for the full program or just for specific module/s or seminar/s.  Anyone interested in more information can contact me at alfonso.lamadrid@garrigues.com

The 2014 program will be structured as follows:

– An inaugural/introductory session by the not-so-good Professor Nicolas Petit will take place on January 10.

– A module on cartels (coordinated by myself) will be held on 13-15 January.

– A module on other restrictive agreements and practices (coordinated by Juan Andrés García Alonso; Peugeot) will take place on 20-22 January

– On 31 January there will be a seminar on recent developments in relation to Art. 101 (coordinated by Fernando Castillo de la Torre and Eric Gippini Fournier, both from the Legal Service of the European Commission).

– A module on abuse of dominance (coordinated by Nicolas) will take place on 3-5 February.

A module on merger control (coordinated by Jerónimo Maíllo; San Pablo CEU University) will be held on 10-12 February.

A seminar on recent developments in abuse of dominance and merger control coordinated by Cecilio Madero (Deputy Director General, DG Comp), Nicholas Banasevic and Per Hellström (both Heads of Unit at DG COMP) and Milan Kristof (Référendaire at the ECJ) will be held on 21 February.

A module on competition law and regulation in network industries (coordinated by myself) will be held on 3-5 March.

– A module on the application of competition and state aid rules to public entities (coordinated by José Luis Buendía and Jorge Piernas) will take place on 13-14 March.

– A seminar on the application of competition law by judges and arbitral tribunals  (coordinated by Francisco Manuel Serrano, Garrigues) will take place on 21 March.

Written by Alfonso Lamadrid

14 November 2013 at 8:01 pm

Posted in Our Organizations

The Odds of Microsoft/Nokia

with one comment

images

Here we are: the long awaited concentration between MSFT and Nokia was notified last week to the EU Commission (Microsoft/Nokia (Production of phones and smartphones) (OJ C324, 9 November, 2013, p. 8)).

Willing to take the following poll?

Written by Nicolas Petit

12 November 2013 at 3:10 pm

Google’s revised commitments proposal leaked

with one comment

Consumer Watchdog, a US organization traditionally positioned againts Google, has just made available leaked  on its website the (supposedly confidential) new version of Google’s proposed commitments (see here: http://www.consumerwatchdog.org/resources/googlesettlment102113.pdf ) together with the Commission’s questionnaire to interested third parties (see here: http://www.consumerwatchdog.org/resources/euquestions102113.pdf).

This organization had threatened Google with making the proposal public in case Google didn’t do it (see here: http://www.consumerwatchdog.org/newsrelease/consumer-watchdog-challenges-google-make-eu-antitrust-settlement-offer-public-us-public).  Julian Assange and Edward Snowden would may applaud the move, but I’m not so sure as to DG Comp (the fact that the names, telephone numbers and emails of its case handlers have also been made public as part of the questionnaire might contribute to flooding -even more- their inboxes…).

I’d bet that Consumer Watchdog has received some sort of advice under EU law and learnt that, interestingly, the Commission has no legal basis to act in a situation like this. Isn’t that a significant procedural gap?

You already know my thoughts about the substance of the previous proposal (if not, click here: https://chillingcompetition.com/2013/06/13/preliminary-thoughts-on-googles-proposed-commitments/ ), so not much else to say on that front.

Written by Alfonso Lamadrid

7 November 2013 at 2:51 pm

Random thoughts

with 9 comments

In the past few days I haven’t been very diligent at keeping up with posting. My bad conscience has led me to write the hastily written random thoughts below. I might come back to develop some of them in posts to come:

1)      On joint v individual assessment of (incriminatory v exculpatory) evidence in cartel cases. For some time now I have been (intermittently) attempting to finish a lengthy piece about evidence in cartel cases (surprisingly enough, there are only a handful of publications worth reading on this subject). One of the interesting things I’m observing is that EU Courts and the Commission [please note that I’m being critical with them; as some of you have reproached me, that doesn’t happen so often] is that whereas the principle of “joint assessment of evidence” is consolidated and very much followed when it comes to assessing the evidentiary value of incriminatory items, the same cannot be said about exculpatory ones.

In most cases, a bunch of elements are put together and assessed jointly in order to declare that an undertaking has committed an infringement. I’ve nothing to object to this logical approach (even more so in cartel cases otherwise these could hardly be brought). My concern on this particular point is limited to the fact that [in another illustration of the tendency of many legal principles to expand themselves until a point of absurdity that eventually must lead to their nuancing] the principle of joint assessment of evidence is often resorted to as an easy escape to avoid discussing individual evidential items that the parties consider worth discussing. In my view, the Commission and the Courts should always first engage in the individual assessment of each evidentiary item, and only then (once the value or lack thereof of every standalone item is established) move on to the joint assessment of all available evidence.

Interestingly, the contrary tendency can at times be observed regarding the assessment of exculpatory evidence. I’ve come across a few Judgments that address exculpatory items one by one concluding that  “x is not in itself sufficient to rebut whatever”, that “y is not sufficient to prove whatever” or that “z cannot on its own lead to whatever conclusion”. The “joint assessment” of x, y and z as exculpatory items sometimes just doesn’t happen. For some examples, take a look at recent cases in which parties tried to rebut the AEG (parent liability) presumption (which, btw, turned 30 a few days ago). I hope to develop –and substantiate- my thoughts on this soon.

2)      A suggestion to improve the Court’s rules of procedure. Nicolas has lately pushed for reform of EU Courts’ rules of procedure regarding conflicts of interest. We have not agreed much on that issue, but I too have a suggestion to improve the rules of procedure. Unless I’m wrong, the current rules do not envisage any sanctions nor any other sort of legal consequences for parties that provide the Courts with false information to (let’s leave misleading aside, for the concept is arguably too wide, for lawyers at least). Most legal systems do envisage such rules. Imagine the Court were to ask a question (written or oral) to a party, and that the information given in response were not only inaccurate, but untrue; should that not have any consequences?

3)      A solicited response to Nico’s views about the effect on trade between MS criterion. In a recent post Nico referred to the effect on trade criterion, complaining that in the eBooks case the Commission had not undertaken any serious assessment, and had swiftly concluded that the conduct at issue did affect trade between Member States. He wisely noted that I’d probably have a divergent view, and I do (he knows me well…). If you ask me, in that case the effect on inter-State trade was crystal clear, as the Commission’s reasoning in paras. 91 and 92 (noting that the conduct at issue was implemented in the whole of the EEA and that agency agreements covered UK, France and Germany) sufficiently shows. Nico says that “[w]ith this kind of reasoning, everything may affect trade between Member States (though I understand Alfonso has a dissonant view on this”. Since I’m asked, my view is that with that reasoning, practices that are implemented throughout the EEA and that manifest themselves with a certain intensity in 3 Member States will be deemed to affect trade between Member States, which, to me, could not be more logical. In fact, as the Decision shows, no party ever challenged this specific point.

4)      A great read. Finally, I confess my (very) geekish action of the month: I’m currently reading R.Odonoghue and J. Padilla’s book on The Law and Economics of Article 102 from beginning to end, as if it were a novel (in my defense: I hadn’t done that in a very long time). The book is a monument; it’s smart, balanced, exhaustive, very well thought and written and deserves (although doesn’t need) all possible publicity. Hats off to the authors. In fact, as soon as I’m done publishing this post I’ll send both authors an invite to participate in our currently lethargic Friday slot section.

Written by Alfonso Lamadrid

6 November 2013 at 7:20 pm

The Golden Rule

with one comment

poster

 

In the new yesterday: Microsoft and Apple have opened another war front by seeking injunctions against Google and Samsung (and other Android players) in the context of patent infringement proceedings.

Ahem: aren’t those guys meanwhile complaining of abusive injunction seeking by Motorola Google before the Commission?

And in the  news today:  the hedge fund SAC Capital agreed to pay $1.8 billion in fines. You read well: $1.8 billion, or more than a repeat offender like MSFT… Who said stellar antitrust fines have something special…

And there’s more: they also agreed to close their investment advisory business!

With this background, I’d just love to hear more on the welfare losses inflicted by insider trading v. those attributable to cartels.

 

Written by Nicolas Petit

5 November 2013 at 2:18 pm

Best Conference on Antitrust Damages to Date

leave a comment »

GCLC Logo

Antitrust Damages in EU Law and Policy

Brussels, 7 and 8 November 2013

Join the GCLC for its 9th annual conference and get first-hand guidance on the interests at stake at a crucial moment of the decision-making process before the European Parliament and the Council.

Vice-President Almunia, academics, DG COMP and Legal Service officials, national civil servants, national and EU judges, business people and competition specialists will debate, comment on their expectations and how they hope to overcome the final hurdles.

Location:
Residence Palace
Rue de la Loi, 155

1040, Brussels

Written by Nicolas Petit

4 November 2013 at 9:56 am

Posted in Events, Uncategorized

Latest ECJ features a bunch of very good papers

leave a comment »

 Blank bookcover with clipping path

EUROPEAN COMPETITION JOURNAL

Volume 9 . Number 2 . August 2013

ONLINE ACCESS

To access this issue online and purchase individual papers please click here

SUBSCRIPTIONS

To subscribe please click here

CONTENTS

 

Vertical Antitrust Enforcement: Transatlantic Perspectives on Restrictions of Online Distribution under EU and US Competition Laws

Gabriele Accardo

Abstract: This article looks at how EU and US competition laws deal with restrictions of online sales in distribution agreements, respectively. The growing importance of online commerce highlights how vertical competition law enforcement is still an important building block of competition law policies, both in the US and in Europe. Businesses who are either engaged in online activities or deal with online intermediaries in the US and EU should be aware of the rules of the game, since vertical antitrust issues are generally subject to different principles on the two sides of the Atlantic. The European Commission recently adopted new competition rules that specifically target restrictions of online sales in distribution agreements, acknowledging the importance of e-commerce for consumers and its instrumental role in achieving the paramount goal of a single internal market in Europe. Conversely, unlike in the EU, several factors, such as the existence of a developed online market, the absence of single market considerations, the paramount importance of freedom to contract and the role of inter-brand competition under US antitrust law, arguably explain why US antitrust doctrine is less concerned about the need to adopt specific rules applicable to restrictions of online sales.

Click here to purchase paper

 

Alternative Approaches to Sentencing in Cartel Cases: The European Union, Ireland and the United States

Paul K Gorecki and Sarah Maxwell

Abstract: The paper examines the approach used in sentencing in hard core cartel cases in the European Union, Ireland and the United States. These approaches are not considered in a vacuum, but rather use the facts of the successful prosecution of the Citroen cartel in Ireland. While the EU and the US both use sentencing guidelines, the US guidelines are more evidence based and transparent. In contrast, the judiciary in Ireland has yet to develop a systematic clear policy for determining sentences in cartel cases. Applying the EU and the US sentencing guidelines to the facts of the Citroen cartel suggests that, in any event, the sentences imposed in cartel cases Ireland are too low. Some suggestions for rectifying the situation are discussed.

Click here to purchase paper

Read the rest of this entry »

Written by Nicolas Petit

1 November 2013 at 4:16 pm