Relaxing whilst doing Competition Law is not an Oxymoron

Of metaphors, airplanes and the publication of decisions

with 4 comments

Metaphors are quite common in antitrust, and there is more to their use than meets the eye, as famously developed in Boudin’s “Antitrust and the Sway of Metaphor“. A while ago Nicolas wrote about the limits of antitrust metaphors, and now @Berlaymonster (a good reason to have Twitter) has spotted an antitrust/airplane metaphor that really went wrong:


And speaking of airplanes, almost 5 years ago I wrote a post about the adoption of the Commission’s air freight cartel decision (for disclosure/advertising: I was involved in that case representing a client who was an addressee of the Statement of Objections but was eventually left out of the Commission’s decision). Following the adoption of the decision it took the Commission 5 years to publish a non-confidential version, and this publication took place coinciding with the oral hearings before the General Court in the case. This delay was pretty controversial and even considered excessive by some national Courts, which have ordered the disclosure of a mostly un-edited version of the decision to a closed group under certain conditions, thus giving rise to a most interesting legal debate.

Not being involved in these follow-on actions I have not followed the cases in detail, but the point I want to make today is a more general one about how practical arrangements concerning the publication of decisions (some perhaps inherent to the procedures currently in place, which Comp cannot ignore in individual cases) can frustrate, or at least contradict, wider policies, notably: is the fact that it might take 5 years for the non-confidential version of a decision to be published consistent with the Commission’s goal of furthering follow-on actions?

And this is not just a matter of publication timing; there’s some element of policy in it as well. Any of you who might have had the curiosity to take a read at recent cartel settlement decision (e.g. the Swiss franc interest rate derivatives cartel decision available here) will have realized about the… frugality of the factual and legal assessment (in the example I’m giving you the description of the infringement is done in merely one paragraph, the full text of the decision is exactly 20 pages and contains no detail at all). Why? Because as we said long ago at the time the settlement procedure was created, the main benefits of the system would not lie in the 10% reduction but (a) in the possibility to “negotiate” (a term that the Commission dislikes) the scope and duration of the infringement; and (b) not less importantly, the fact that a full-fledged detailed fact-intense x-hundred page decision would not be adopted.  Fair enough, there may well be good reasons to do this but query: how well does that fit with the Commission’s excellent job of boosting follow-on actions on the policy front?

Having said that, there is even a possible inconsistency within the inconsistency. Sometimes the Commission contends that lack of info in the decisions is justified by the need to protect leniency applicants. But then in some cases (I have this one in mind)  it has decided, years after the publication of a first succint decision, to publish longer, more detailed, versions including leniency materials; but query: is this consistent with the policy of protecting leniency applicants?

Admittedly, the Commission has the very difficult task of balancing partly conflicting interests, but, last query, wouldn’t it be better to have a consistent policy rather than saying one thing or the contrary depending on the case?

Comments welcome…

Written by Alfonso Lamadrid

16 June 2015 at 7:07 pm

Posted in Uncategorized

4 Responses

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  1. I have only one comment: the Commission should provide and bind itself to a maximum deadline for issuing the non-confidential version of a decision. A side comment, too: at the level of some national authorities – e.g. Romania – the existence of a maximum term for sending the full decision (with all the reasoning and the merits) should be taken into account – when this takes 4 or 6 months for simple RPM cases, it could be read that the authority was not certain in its decision!


    17 June 2015 at 4:22 pm

  2. They aren’t really antitrust metaphors, but Justice Kagan’s Spider Man references in Kimble v. Marvel deserve some attention on this blog I think (my personal favorite is “in this world, with great power, there must also come great responsibility”). So do the ruling itself and the dissent of course.


    24 June 2015 at 2:44 am

  3. I’m on it, spider!
    Already read it and spotted a bunch of interesting things (now I only need to find the time to write it…)

    Alfonso Lamadrid

    25 June 2015 at 11:02 am

  4. The delay in publication of the air cargo decision has been quite ridiculous, and such delay does make follow on actions more difficult, but I do have some sympathy for the Commission. We could do with the CJEU overruling Pergan and giving the Commission a healthy margin of appreciation on confidentiality determinations. It’s all too easy for parties to inject delay in publication of decisions. I suppose that at least having a settlement means you get some sort of public decision quickly, even if it is shorn of most of the detail.

    Richard Pike

    26 June 2015 at 11:19 am

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