Relaxing whilst doing Competition Law is not an Oxymoron

Archive for September 2015

Update on the Chillin’Competition Conference

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As recently announced, the Chillin’Competition Conference will be taking place in Brussels on November 19th.

The programme is practically finished and we hope to publish here next week. In the meantime (and since work has precluded me from writing anything more substantive today) we can give you some additional details:

-Where? The conference will take place at the premises of the Federation of Belgian Enterprises, in Rue Ravenstein 4, Brussels.

-When?  On Thursday, November 19th, 2015, from 9.30 a.m. to 19 p.m, although there will be drinks afterwards [actually, not only afterwards, you’ll see 😉 ]

-What? We will be holding 5 panels, each with 5 panelists, one touching on object/effect issues in Arts. 101 and 102; one on competition in the online world, one on competition and IP, one on institutional and procedural issues, and one on State Aid.

-Who? We have managed to have a quite impressive line-up of speakers, including a member of the CJEU, several Commission officials, national judges, academics and quite a few top-notch practitioners (I’m sure my firm will appreciate that I organize an event to showcase competitors). Quite impressively, only two of the many people invited have said they unfortunately could not make it [a clue: one is Danish :)]. Pablo and I will not be speaking, since –as you might have noticed- we’ve already depleted our stock of ideas.

-How much? Nothing, but if you ever see us around, you can invite us to a couple of beers.

We can also safely announce that we will be breaking a good number of the 10 commandments for Brussels conference organizers.

-Sponsors. We are immensely grateful to those who have so far agreed to contribute to the conference via sponsorships, so far (for the sake of clarity, the bold in “so far” means that others can still join; but hey, no pressure…): Cleary Gottlieb, CCIACovington, Garrigues, Gibson Dunn, Hart Publishing, Herbert Smith Freehills,  InbevLinklaters and White & Case.

Written by Alfonso Lamadrid

30 September 2015 at 7:54 pm

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Whish & Bailey and the marketplace of ideas in EU competition law

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Whish & Bailey

The successive editions Paul Samuelson’s legendary textbook accurately capture the evolution of economic thinking over the second half of the 20th Century. It is the most obvious starting point to get a sense of the shift in consensus positions on many issues, including the viability of central-planning or the role of monetary policy.

It is probably appropriate to say that Whish & Bailey’s Competition Law is our discipline’s Samuelson. It has been widely (and rightly) praised for its clarity and has long set (and still does) the standard for other textbooks in (EU) Competition Law (also when it comes to the jokes). As much as Samuelson’s Economics, it also reflects consensus positions. This is the reason why I open with excitement every new edition of Competition Law to spot changes in the text (and this in spite of the fact that it is each time a painful reminder of one’s old age).

I received the 8th edition a few weeks ago (I have all editions from the 5th, with which I studied in Bruges). As I expected, there is a relatively lengthy discussion of Cartes Bancaires (pp. 125-127) and its impact on the textbook’s trademark framework, which revolves around the famous ‘object box’. The analysis of the Court in that case (and in previous ones, such as Allianz Hungaria) shows that the ‘object box’ approach is not always reliable. The discussion of this question in the new edition is in any event interesting and valuable. And there is no doubt that the ‘object box’ will help thousands of students to make sense of the underlying legal concept!

Another key change comes in the treatment of exclusive dealing and loyalty rebates. The book used to take a marked normative stance on the question. In the past two editions, the author(s) expressed a preference for an effects-based approach to exclusive dealing. Similarly, they considered that the application of the ‘as efficient competitor’ test to loyalty rebates by the Commission could have a positive impact on the substance of the law.

The 8th edition is remarkable in that it adopts a positive stance on these matters. The authors no longer dispute the current state of the law. They simply explain that exclusive dealing and loyalty rebates are prima facie prohibited and that it is for dominant firms to put forward an objective justification for their behaviour. The new edition is also a good reminder for students that there is no such thing as a per se prohibition in EU competition law.

It is not difficult to guess what might be behind these changes. Wouter Wils’s article on Intel (announced in this blog) has had an enormous impact in the competition law community – it is probably the most read article of the past 12 months. Regular readers of the blog will remember that Richard Whish wrote an editorial defending the prima facie prohibition of exclusive dealing shortly after that article was published.

The changes introduced to the new edition show, above all, that ours is a discipline in a constant state of flux. Some of my colleagues regret that the law in some areas has become so stable that there are hardly any interesting theoretical or practical questions. For better or worse, EU competition law is really far from reaching that stage.

I genuinely thought – and I do not think I was the only one – that the Commission Guidance on Article 102 TFEU captured reasonably well the consensus around the appropriate treatment of exclusive dealing and loyalty rebates. It is now clear that such consensus does not exist, and may never have existed. From this perspective, Wils’s article played a valuable role, in the sense that it has prompted a vigorous (and necessary) debate on issues of principle. It is not a secret that I hold different views. But as a firm believer in competition, even (or rather, especially) when it comes to ideas, I am convinced that a more robust, consistent and sensible competition law system will emerge from this debate!

Written by Pablo Ibanez Colomo

28 September 2015 at 11:29 am

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More on Big Data and Competition Law

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To sighs of relief among the audience I have just finished my intervention at ERA’s conference Competition Rebooted: Enforcement and personal data in digital markets”

My slides are available here: Competition Big Data_Lamadrid

Nothing of what I said will sound new to frequent readers of this site; the content of my presentation has a lot to do with previous posts on the subject (see here, here and here).

The contributions from the EDPS himself, Jorge Padilla, Orla Lynskey, Maurice Stucke, Patrick Van Eecke, Cyril Ritter, Amal Taleb, Cecilia Parker and Christian D’Cunha were all much more interesting. If interested in their slides, then you should have registered 😉

Written by Alfonso Lamadrid

24 September 2015 at 4:04 pm

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How I remember Joshua Wright (hint: not as a Commissioner)

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Joshua Wright

Joshua Wright has left a mark during his tenure as an FTC Commissioner. The reason is not a secret to anyone. I do not always agree with his positions, but his contributions are invariably relevant and thoughtful. If he has written on a topic on which I am working, I always end up reading his stuff, and I always get something out of it. My favourite pieces are probably his speech on incomplete contracts, standard-setting organisations and FRAND and his article (co-authored with Douglas Ginsburg) on dynamic analysis and the limits of antitrust.

When I think of Joshua Wright, the first image that comes to mind is not that of the FTC Commissioner, however. I tend to think instead of a young Assistant Professor presenting a paper. Back in January 2009, I was at Stanford Law School. It was the last of the six wonderful months I spent in Palo Alto as a visiting PhD student. Mitchell Polinsky was kind enough to allow me to attend the Law and Economics Workshop, where Joshua Wright presented ‘Is Antitrust too Complicated for Generalist Judges’, which was eventually published in the Journal of Law and Economics.

There was the Assistant Professor defending his findings in front of the mighty Stanford Law Faculty. That seminar made a strong impression on me. The substance of the paper matters less than the atmosphere and the attitude of the participants. It was a really intense seminar. I remember the probing questions, which revealed that everybody in the room took very seriously the task of advancing knowledge. To this day, I still think about the seminar as the ideal academic environment, in which nothing is personal and there is no room for pettiness. What matters is to get things right. No matter how demanding, I am sure Joshua Wright felt grateful for the session.

With these vivid memories fresh in my mind, you can imagine how impressed I was when I learnt that, a mere four years later, Joshua Wright had been sworn in as a Commissioner. This amazing career is testimony to his talents and energy, which have become even more apparent during his time at the FTC. If it was not clear enough from the above, I will finish by saying that I am delighted that he is returning to a full-time academic position.

Written by Pablo Ibanez Colomo

23 September 2015 at 10:23 am

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On the FTC and LSD

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You might remember that last week, in the post in which we we announced the date of the Chilling’Competition Conference, I included a sort-of-hidden sort-of-joke saying that we were taking inspiration from the organizers of another recent successful conference.

I didn’t explain what that conference was about but instead included a hyperlink. Those of you that clicked on it (only 195) were redirected to a The Guardian’s piece about a homeopathy conference in Germany where a number of people were intoxicated with an LSD-like drug and experienced psychotic hallucinations, cramps, racing heartbeats and shortage of breath only to be found rolling around on the floor by the emergency services. [the piece was sent to me by my colleague Luis Ortiz with a phrase saying “you need to use this somehow on the blog”. How Luis got to that news in the first place is still beyond me…]

When I wrote this I truly was not thinking about organizing any LSD related event under the cover of an homeopathy conference (sorry if that’s a dissapointment; there’ll be other surprises though).

But others seem to have taken our suggestion seriously. Today I ran a quick search for upcoming antitrust-related stuff, and thanks to Reuters I discovered this (really, no kidding, see here)


No comment 🙂

Written by Alfonso Lamadrid

22 September 2015 at 5:34 pm

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What’s with this obsession with the objectives of EU competition law?

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Bob Solow, a Nobel Prize laureate, once said the following of Milton Friedman: ‘Everything reminds Milton of the money supply. Well, everything reminds me of sex, but I keep it out of the paper’. I think very often of this superb quote (and of the money supply) when reading competition law scholarship.

It would seem that there is always a valid reason to discuss the objectives of EU competition law, or to explain a legal controversy by reference to them. Authors disagree about the substantive standard that should apply to a practice? It must be the case that they disagree about the objectives that should guide EU competition law. A discussion about, say, vertical restraints? Pondering whether consumer welfare should be the goal underpinning the enforcement of Article 101 TFEU is absolutely necessary.

What I find interesting is that, the more I dig into the case law and administrative practice, the more apparent it is to me that the objectives of EU competition law are of marginal relevance in the decision-making process. My own research efforts lead me to the conclusion that, with very few exceptions, this question plays a very limited role (if at all) when the Commission or EU courts consider whether, and in what circumstances, a given line of conduct should be prohibited. It is simply a mistake to assume that a specific substantive test follows logically from a particular objective, or that a disagreement about the objectives that should guide EU competition law necessarily results in a disagreement about the test to apply in the context of a particular case.

Against this background, I asked myself why this issue features so prominently in academic and non-academic discussions. I can think of the following explanations (as usual, I would very much welcome your thoughts):

  • Use as a rhetorical device: Challenging someone’s position by arguing that the arguments are only valid when a given objective is endorsed is often very effective. ‘What you say makes sense, but unfortunately consumer welfare is not the objective of EU competition law’, is indeed a powerful rhetorical device that can, moreover, prove useful to avoid addressing difficult questions.
  • It is relatively easier: abstract discussions about the objectives of EU competition law may not be very useful in practice, but they often require little effort, or at least much less effort than reading carefully the case law and administrative practice and inferring principles from them. It is probably the case that the latter, no matter how necessary, is also less attractive for many.
  • The influence of economics: It makes sense for economists to think about issues by reference to a benchmark against which the lawfulness of a practice can be established. The influence of economic analysis in the field may explain why even academic and non-academic lawyers display a tendency to go about questions in the same way. This is an additional reason why doctrinal analysis may be neglected.

For those readers who thought they would never see it, there you have it: I have just provided a clear example of why the influence of economic analysis might have proved negative in one important respect: it may have the effect of inducing legal scholars to engage in research that is not significant or that contributes little to the understanding of the discipline. I guess this blog can still bring surprises every now and then!

Written by Pablo Ibanez Colomo

17 September 2015 at 2:36 pm

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The Chillin’Competition Conference- SAVE THE DATE

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The first Chillin’Competition Conference will be happening in Brussels on Thursday 19 November 2015.

We are in the process of contacting speakers and hope to be done by the end of the week, so you can expect more information very soon.

For the time being we can tell you that the conference will be free for attendees. It will be funded by contributions from sponsors and any money exceeding our costs will be given to NGOs dealing with the refugee crisis.

We are also in touch with the organizers of this very successful conference to see whether we can get some ideas… 🙂

Written by Alfonso Lamadrid

15 September 2015 at 5:06 pm

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