Chillin'Competition

My blogging inactivity over the past few days has to do with spending two weeks in Luxembourg for hearings with a short visit to Madrid for this seminar, which, btw, exceeded the already high expectations. In intense weeks like these ones I tend not to post even stuff I’ve written before because the downside of having your own clients read your blog is that they may get the impression that you’re blogging instead of preparing [Note to them: don’t worry, nothing further from the truth…].

This is all to justify say that today’s post will not be very brainy; here is just a compendium of short reflections spurred by recent experience:

On litigation. I’ve always said that litigation is the most fun part of my job. The problem now is that with the prevailing “amicable” solutions in antitrust (settlements and commitments) the scope for litigation is getting narrower and narrower (as clearly reflected in the joint slides by Judge Van der Woude & Nicolas Petit available here). The result is that most competition-related litigation nowadays is State-aid related. I, for one, am involved now in over 30 ongoing State aid appeals. I guess it’s a consolation that at least one area of competition law is still within the realm of judges.

On state aid. State aid now gives rise not only to most litigation, but also represents a higher percentage of the output of DG COMP than mergers, cartels or abuse of dominance. Nevertheless, it receives much less attention from the people who typically comment on antitrust issues. In previous posts I’ve given my view of the possible causes for this (see here) but today I’ll focus on a consequence: in State aid the Commission can get away with some absurd arguable or inconsistent decisions with no one even noticing. Fortunately, EU Courts are trying to remedy that with some sensible case-law, which also goes similarly unnoticed.

On the Legal Service. Some time ago I also wrote a post on the Legal Service (see here) which earned me some criticism from fellow practitioners who thought I was being too nice to “the enemy”. After some recent hearings in which I’ve been opposing and disagreeing with them I have to stand firm on commending their work, particularly given the acts that they sometimes are obliged to defend 🙂

On the press and competition law. In the past few weeks there were also a few cases on which I have worked that appeared in the general press, and this also triggered a reflection. The coverage that non-specialized press often does of competition cases is shameful subject to improvement, often trying to present everything under a simplistic light attempting to give the impression that everything is a scandal (what they have done with the alleged dairy cartel in Spain is a very good illustration of this). This makes me wonder whether that is also the case with regard to other issues that I don’t know first-hand. Like with lawyers, the differences between good and bad journalists can be enormous, and in Brussels there are competition journalists who know more about competition law than many lawyers, but at the national level…  Considering the increased politicization of competition law (see here), the messages conveyed to the general public are increasingly important, and wrong messages may well lead to wrong decisions.

On Spanish competition law. Some of you have recently inquired about why, despite being two Spaniards, Pablo and I don’t comment on Spanish competition law developments. Well, aside from the fact that the scope of the blog is wider, we’ll comment on those whenever we have something positive to say… The only recent welcome development which deserves a comment is the sensible Supreme Court Judgment on fines on which we still have to comment (I’m waiting to see whether the consequences are the apparently intended ones). This Judgment, by the way, reminded me of something that is applicable to many debates on competition law enforcement and judicial review: much more than institutional arrangements, what matters is having prudent and knowledgeable people doing the work.

On Pablo’s most recent posts: A few of you reacted in private to Pablo’s recent posts on Post Danmark II asking whether he’s ever liked any abuse of dominance case ever done by the European Commission. I thought that was a very good question (and have been teasing him with it for a few days) and one that it’d be interesting to pose him in public. So, Pablo?