Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Thunder and lightening over Luxembourg (The Intel Hearing, by Trevor Soames) (Part I)

with 5 comments

 

Intel

Our call for Chillin’Competition special envoys to the Intel hearing caught the attention of  Trevor Soames, who volunteered to cover it for the readers of this blog. It’s a luxury for us to post his chronicle of the hearing held today. Below is a first teaser. A more complete report is literally on its way from Luxembourg:

***

In a dramatic and sometimes stormy hearing today the Grand Chamber of the Court of Justice held an oral hearing on Intel’s appeal against the General Court’s decision upholding the Commission’s Article 82 infringement decision.  The strong bench was led by CJEU President Judge Koen Lenaerts, with former CFI da Cruz Vilaça as Juge Rapporteur and Nils Wahl as Advocate-General.

The Court asked the parties to focus their oral pleadings on three specific questions and thereafter Commission counsel was peppered with multiple follow up questions, initially from da Cruz Vilaça and then Nils Wahl.  Judge Eugene Regan also asked a single but incisive question.  The hearing overran its allotted time and raised a number of important issues.

One had the sense that the Advocate General is preparing to deliver a profoundly important Opinion shedding light on numerous controversial issues, including the validity of the General Court’s tripartite categorisation and its consistency (or not) with case law such as Post Danmark II, issues of jurisdiction and due process.

A full report will be published later today.

Counsel at the hearing were Nicholas Khan for the Commission supported by a distinguished team from the Legal Service led by Theofanis Christoforou and senior officials from DG Competition including DDG Cecilio Madero. Intel was represented by Daniel Beard QC and for the intervener ACT, Jean-François Bellis.

 

Written by Alfonso Lamadrid

21 June 2016 at 3:30 pm

Posted in Uncategorized

5 Responses

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  1. Mr Soames has probably attended a different hearing than the rest of the audience. Or perhaps this “Sturm und Drang” account is caused by some peculiar sort of romantic distortion of the tedious harassment of the Commission by AG Wahl, badly trying to attract attention to his profound (self) importance.

    Nevertheless, one should salute the glittering performance of Daniel Beard QC, invoking the Charter in a final blow to common sens (but one has to admit that the comical effect is always guaranteed, when this is done by a Brit), and the gracious self-restraint of Mr Nicholas Khan, refusing to enter the egotistic dance of the Nils Wahl show (apparently, peculiarly effective on the present members of the competition law community, fawning in delight at his pro-Intel performance).

    Yves

    28 June 2016 at 8:35 am

  2. Having been at the audience myself, I find Mr Soames’ comments rather honest and accurate. Of course one may or may not agree with his personal views and impressions. Any different view would certainly be interesting for the wider audience of this blog, were such a different view be – first – thoroughly explained (which you do not do) and – second – presented fairly and without making use of insulting language vis-à-vis members of the court and the parties’ counsel (which unfortunately you do). Dear Mr I, you should know that courtrooms are no football ground. They are a place for serious, sensible and prudent jurists, not coarse cheerleaders of one or the other party.

    Mary O.

    4 July 2016 at 3:37 pm

    • It is all a matter of perception. Yes, of course, courtrooms are “a place for serious, sensible and prudent jurists”, I guess that was precisely the point Yves was trying to make. For example, they are not normally a place to ask the Commission, as it happened in AC-Treuhand (guess who was the advocate-general) whether it knew what a restriction of competition was. The answer was “Selbstverständlich!” (you can read the outcome in the judgment, to be compared with AG Opinion). Disagreements are possible and debates are healthy, but courtrooms are not lecture halls, and the parties’ lawyers are not students. I imagine that it is not very comfortable for the Commission, after more than 50 years of experience in competition law enforcement, to have the impression that it being “lectured” (by what some may consider “newcomers”). Several other judges, including the president of the ECJ, also have wide experience in competition cases (btw, he was reporting judge in Michelin II), and even if they certainly do engage in respectful, intellectual debate with the parties when needed, they rarely deploy what some may view as a “lecturing” attitude. Anyway, debates are always welcome, I am sure our dear bloggers will agree. What finally counts are the views of the judges, who were rather silent, apparently.

      student

      5 July 2016 at 9:07 am

  3. I am rather shocked by the exchange of posts above. The harsh words used by some users and the fact that, rather than express criticism, they prefer to make personal attacks on lawyers and members of the Court makes me doubt that those persons are actually unbiased. I wonder whether anyone has some (hidden) vested interest in the case… By the way, a quick google search would have revealed that (a) Intel’s counsel is a famed barrister, the youngest silk of his year; and (b) the AG in charge has a very positive track record with regard to antitrust cases. For example, in each of CB, Deutsche Bahn and HeidelbergCement he proposed to annul the General Court judgment that had (wrongly) upheld a Commission decision, and the Court followed his suggestion. In fact, he’s a competition specialist and could thus hardly be defined some newcomer in that field of law. In truth, it is disturbing that someone may imply that since an authority has been applying the law for over 50 years that fact would grant it some sort of immunity from judicial review, or at least the right not to be grilled in the courtroom. Given the extensive powers that the Commission enjoys in this field it is of the utmost importance that it may be called upon to defend its cases before an impartial court of law.

    fred

    5 July 2016 at 5:27 pm

    • Dear fred, are you suggesting that members of the Court are immune from criticism? Is that compatible with the rule of law, or freedom of expression? I have always been surprised of how little research is done in Europe (compared to US) about the attitude and approach of individual members of the Court.
      The posts: I have not read that anybody is suggesting that the Commission should “immune from judicial review”, so your comment appears to have also entered the dangerous waters of distorting what others say. The only point that was made, I think (please previous “posters”, correct me if I am wrong), was, in essence, that “there are many ways to grill somebody”, so to say. Some are more colorful and entertaining for the audience than others; some may be appropriate for lectures with students, not courtrooms; some may try to show how much the persons knows about something and be directed to the fellow judges rather than the parties; some may reveal too much of the personality of the judge. We all may have different views about what is less or more appropriate, in a courtroom, and that’s just fine. One may have the view that there is no need to “grill” anybody, just put your question, take note of the answer and say in your judgment that the Commission is wrong and why, and basta. Grilling people may have been fashionable in the middle ages (and may still be in same tribes in Papua New Guinea), but judicial review is no less effective without certain “grilling practices”, however entertaining they may be for the audience. Unfortunately, we cannot grill the judges (or AGs) with questions. Fair enough, these are the rules of the game, but let people have some fun “grilling” them (or the lawyers) on the net. There is nothing shocking in the posts above. Judges will not read all this anyway, so any “vested interest” is irrelevant. Chill and relax.

      student2

      5 July 2016 at 11:59 pm


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