Chillin'Competition

When asked about what it takes to be a good lawyer (you know my take on that one), the former Chairman of my firm likes to say that lawyers must absolutely read newspapers. I think that he might have had in mind the pre-online era press, but anyway, he had a point. This post is about some things I read in the press over the past couple of days.

During a very long night flight on Saturday night I was able to read something not work related, namely the last issue of The Economist and the book How Children Succeed: Grit, Curiosity, and the Hidden Power of Character. I very much recommend the latter, but for the purposes of this post (and since this blog is not about important matters), I will comment only on the former:

The Economist issue places the spotlight on the role played by a handful of very large corporations in today’s economy, arguing that their rise threatens both competition and the legitimacy of businesses (see here). Not surprisingly, after citing interesting figures on increased levels of concentration in the economy, the piece turns its eyes to antitrust. I have often agreed with the way that newspaper has considered antitrust as a means of ensuring “radical centrist” policies (see here and particularly here) to which equality of opportunity is key, but this time I think they may have got it wrong.

The Economist claims that “prudent policy makers must reinvent antitrust for the digital age” and welcomes efforts to prevent “tech firms from unfairly privileging their own services on platforms they control” praising the Commission’s pursuit of Google (a couple of paragraphs earlier it criticizes the Institution for using State aid to go after Apple).

In my view, what prudent policy makers should do is not meddle with a stable –if somehow inconsisent- set of judge made case law that applies across the spectrum to all sectors. It is a defining feature of antitrust law –for the good- that its adaptability comes precisely from its relative isolation from small politics (as I too often say here, it is a distillation of common sense infused with mainstream economics). Also, and as The Economist knows and often claims, legal certainty does have great value, also in economic terms, so changing the rules in the middle of the game might have a cost.

I share the newspaper’s credo of equality of opportunity, but they may have fallen into the tempting trap of equating that with some vague sense of perhaps-not-so-thought-through neutrality. Such reflexes, which are common, nevertheless comfort us in the decision to devote our upcoming Chilling Competition conference precisely to the role of neutrality in competition law. There are plenty of issues in need of fewer assumptions and greater and finer discussions. Even the press, by the way, is also finding out about the perils of ill-conceived neutrality (re, for instance, Brexit or Trump; see e.g. here).

On top of that, I’m not so convinced that some of our current “policy makers” are ideally-suited to “reinvent antitrust”.

Let me give you an example of why I’m saying this, and one that also features in the news today:

As I skimmed this morning through the Financial Times (admittedlty in search of this story quoting my views on State aid law and Brexit) I came across a piece in which the FT criticizes the Commission’s copyright reform initiatives (“The EU takes a backward step on digital copyright”).

As you know, the Commission plans “forcing” news publishers to demand a fee from news agreggators when they show snippets of content. When that happened in Spain (and the Commission took no action; the national competition authority did say something, though) aggregators closed their sites, with the result that news publishers received much less traffic and even claimed that the shutting down of those aggregators could amount to an abuse of dominance.

The Financial Times – a would-be beneficiary of the initiative- argues today that “the kindest interpretation one can place on these proposals is that the commission has simply misunderstood the marketplace. A more cynical view is that it has caved in to fierce lobbying by a number of powerful European publishers”.

When the Spanish law was enacted, the world’s leading IP scholar Mark Lemley said on Twitter: “Quite possibly the dumbest law enacted anywhere this century”. I’m just not sure that putting an EU seal on it may be good thing. In addition, and regardless of political and IP-issues, this initiative raises interesting antitrust issues too: the world’s leading an obscure antitrust scholar said on Chillin’Competition, this initiative could be regarded as the public creation of a watertight cartel.

In sum, if some of our policy makers don’t respect competition law, I’m not that sure that they are well-suited to “reinvent it”. I,for one, like it as it is.

P.S. It did not feature that much in the news, but new judges were sworn in at the General Court yesterday (and Marc Jaeger has been re-elected President). New judges include Paul Nihoul and Alexander Kornezov, a contemporary of Pablo at the College of Europe (which will force Pablo to re-assess his precociousness, professionally speaking)