Relaxing whilst doing Competition Law is not an Oxymoron

Mixed bag (Intel, Leniency, Msft/Linkedin, State aid, marriages and Twittelphants)

with 6 comments


-The ECJ Intel hearing will take place next Tuesday (21 June). Chillin’Competition would like to be there, and since Pablo and I have real works to do we are looking for Special Envoy to cover it for us. We offer the blog to anyone who is able to attend and wants to comment it for our readers. As compensation, a few beers or a lunch. If interested, drop us a line ! Our offer is open to lawyers, students, clerks who may prefer anonymity, professional journalists or other anonymous contributors. It’s about time that someone writes something serious in here…

Wouter Wils  just published a new piece discussing the past 20 years of leniency policy in the EU. It’s available here. Some might think it’s an obituary given recent concern about its future… 😉

-Speaking of leniency, an ECJ Judgment rendered last Friday (mitigating my most recent cartel litigation stats) concludes that the fact that the Commission is in possession of a document implies that it has knowledge of the content of that document (even if it hadn’t really understood it or realized about it), so the fact that a leniency applicant made it aware of elements the Commission wasn’t aware of cannot be rewarded. I’m not exaggerating, para. 72 of the Judgment says “it must be held that the Commission’s possession of evidence amounts to knowledge of its content, regardless of whether that evidence was actually examined and analysed by its services”. Well, that is the logic I apply each time I buy a book (assuming its possession will automatically mean knowledge of its content regardless of whether I analyse it), and my experience tells me that may not be right. Btw, that reasoning may open some interesting new doors (e.g. for determining what is a notification under State aid law or for companies accused of providing incomplete or incorrect info…).

-Many of you have asked in private about our opinion concerning competition issues in Microsoft’s acquisition of Linkedin. Not that I have given it much thought, but since Microsoft is a shareholder in Facebook, this could perhaps be a nice test case for Elhauge‘s “Horizontal Shareholding” theories.

-Instead of writing on this blog I have been commenting on others. For an interesting discussion on the notion of beneficiary/advantage in relation to a case in which I’m directly concerned (and on which my litigation stats crucially depend given that we are acting in 25 proceedings against a tax State aid decision recently annulled by the General Court and now appealed before the ECJ), see the comments to this post on European Law Blog (seems my last comment is still awaiting moderation).

-Pablo has been busy as well, speaking to judges in Madrid, to College of Europe students in Bruges, celebrating his birthday and his against all odds successful marriage proposal (congrats to him, not so much to her), etc. 😉

-And for those of you wondering what happened with Commissioner Vestager´s Twittelphant, it seems like after a premature celebration we might NOT be the winners (even after resorting to the dirty tactic of leveraging the blog’s market power). Since my son had already given it a name I will now have to get him another elephant!


Written by Alfonso Lamadrid

16 June 2016 at 3:48 pm

Posted in Uncategorized

6 Responses

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  1. You may want to check all the entries and number of RTs before celebrating…

    Elephant Watcher

    16 June 2016 at 9:22 pm

    • !! You just prompted me to do a different search (I was looking only at the comments in the Commissioner’s tweet, not at hashtags (I’m new to Twitter), and indeed it seems like we lost! Now I need to get Edu an elephant myself 😉 (and edit the post too)

      Alfonso Lamadrid

      16 June 2016 at 9:33 pm

  2. But para 72 of the ECJ judgment of last Thursday (not Friday) starts by saying: ” …, for the purposes of the application of that provision, ” and this is the conclusion after the ECJ explains a number of reasons to support it. So far the GC, the AG and a five judges chamber with no less than Lenaerts himself in it have agreed. The the judgment does not say that the Commisison was not aware of the information (in the sense proposed by the appellants). The point is not even discussed.
    In comparative administrative law, as far as I know, the administration takes cognisance of a document as soon as it is notified to it. And that’s a good thing. Otherwise the administration could just not reply to our letters by saying that it did not read it.


    17 June 2016 at 11:22 am

    • Good point on the Thursday/ Friday! Indeed I remembered it came out while I was flying but I flew both days and you are right. On the awareness issue, if the Commission adopted a supplementary SO only following the leniency apliccation then perhaps it really had not been aware before… In any event, your view was indeed the one endorsed by the Court, so I might well be missing something.

      Alfonso Lamadrid

      17 June 2016 at 11:32 am

  3. Your analogy with buying a book is somewhat funny but also quite ridiculous.

    Sylwester Gumienny

    21 June 2016 at 4:36 pm

    • Thanks, I guess, for the first part of the comment.

      Alfonso Lamadrid

      21 June 2016 at 4:40 pm

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