Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for November 2016

N. Petit on AG Wahl’s Intel Opinion

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intel-cpu

[Nicolas retains advertising rights on this blog, also for his publications, so he an exception to our new policy of not advertising publications and events (except the ones on which we participate…) on the home page of this blog. This change is driven by our inability to say no and by the fact that it was becoming hard to accomodate all requests. So from now on you will see a new section on the right side of the home page, just below our bios, called “Events and Publications“; we will be regularly feeding that section with interesting information that will still be visible from the home page without taking that much space. Please feel free to continue sending that info our way!]

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Nicolas has been pretty prolific lately combining interesting writings with his new focus on artificial intelligence (not kidding). He has just posted on SSRN a new paper titled “The Advocate General’s Opinion in Intel v Commission: Eight Points of Common Sense for Consideration by the CJEU“.

His contention in this interesting paper (which as you might have expected suggests the ECJ to follow AG Wahl’s Opinion) is that improvements of the law on Article 102 TFEU are within reach, without a necessity to completely revamp the case-law. Suffice is it to apply logic, first principles and common-sense, and follow the trajectory delineated by Post Danmark I and II.

Nicolas has identified the following as the key 8 ideas developed in the paper:

1.An Effects Analysis underpins Hoffman-La Roche;

2.Category and “Super-Category” Mistakes;

3.The Non Sequitur of Exclusivity =Exclusion;

4.The Non Sequitur that Any Exclusionary Effect is Anticompetitive;

5.Capability, Likelihood and Probability Standards;

6.The AEC test is a legality test, not a priority test;

7.A More Economic Approach to the Enforcement of Article 102 TFEU improves Legal Certainty, the Rule of Law and the Uniform Application of EU law;

8.A More Economic Approach does not entail more Mathematics;

To better understand what these mean, we suggest you take a look at his paper, which  can be downloaded at:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2875422

Written by Alfonso Lamadrid

30 November 2016 at 10:55 am

Posted in Uncategorized

The Sharing Economy and Competition Law

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File illustration picture showing the logo of car-sharing service app Uber on a smartphone next to the picture of an official German taxi sign

The ECJ hearing in one of the main Uber cases (C-424/15 Asociación Profesional Élite Taxi v. Uber Systems Spain) took place this morning in Luxembourg. We were planning to comment on the possible implications of the case not only for competition law but for online platforms in general and for the Digital Single Market. However, as it often happens reality gets in the way and (i) I don’t really have the time today + (ii) I’m not sure of what I can say about it yet, so we’ll leave it for another day (apologies for the deceiving title of the post…).

I nonetheless did commit to advertise the workshop that our friends at ERA have organized next Thursday  on “EU Competition Law and the Sharing Economy in the Age of Uber &Airbnb” (on which I quite unfortunately could not participate), so if you are interested in the topic and want to hear from some of the best in the field, click here for more info.

This is, by the way, a topic on which I spoke last year in Madrid, but more generally, in relation to the wider legal challenges posed by the sharing economy. It’s not that I said anything of much interest, but I’m so proud of my slides (which include an app to find lawyers near you; in Spanish, though) that I thought I would re-post them here: Sharing Economy _A.Lamadrid  😉

Written by Alfonso Lamadrid

29 November 2016 at 9:28 pm

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What I have been reading lately

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The conference (and the blog, and the teaching and the papers) have not prevented me from reading a few interesting books lately. Many of the books have been biographies, which I have come to appreciate. When when well written and crafted, they combine the best of journalism and fiction.

It has been a while, but one of the most captivating biographies I have ever read is that of former US Supreme Court Justice David Souter. Souter is an interesting figure himself. He was appointed by Bush sr, but sided systematically with the liberal wing of the Court – including in antitrust matters. My own impression is that he is just someone who deeply believes in the law and takes it very seriously. The carefully researched book does not disappoint.

In my attempt to understand what is going on in the country where I now live, I have read this year Sonia Purnell’s biography of Boris Johnson. It is a page-turner that confirms the impression that Boris Johnson gives on TV: i.e. that he is a lazy and incompetent dilettante.

Having devoured Boris Johnson’s biography, I was expecting the best of the long-awaited monograph on Richard Posner. Unfortunately, it has been one of the great disappointments of the year. Besides some gossip about his time as a student at Harvard Law School – it looks like Posner managed to terrify and alienate the faculty as a 23 year-old – I do not believe there is anything in the book that has not been said (more graciously) elsewhere.

Anyone interested in Posner should instead read the classic piece published in the New Yorker, which is a good example of journalism at its very best. The way Posner demolished the arguments against gay marriage is another must read/listen.

Our friends – and generous sponsors – from Hart Publishing sent us a review copy of UK Merger Control, written and Jonathan Parker and Adrian Majumdar. I have now found the time to take a look at it and I have to say I am most impressed by it. Congratulations to the authors on an amazing achievement!

On the to-read list, I have Choice, edited by Paul Nihoul, Nicolas Charbit and Elisa Ramundo. It is always refreshing to reflect on the introduction of new approaches and paradigms.

Written by Pablo Ibanez Colomo

28 November 2016 at 2:58 pm

Posted in Uncategorized

Videos and photos from the Chillin’Competition Conference

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Chillin’Competition productions is proud to present you with:

  • A photo gallery of the event that fortunately leaves out the post-conference drinks.  To access the gallery, click here
  • A short  video with some of the conference highlights (with a bonus at the very end…):
  • A video of part of my introduction to the conference [due to a technical error the first couple of minutes are missing, but you only miss the “thank yous” and a couple of bad jokes].
  • A video of Commissioner Vestager’s much-talked-about keynote speech (the video includes the Q&As) (thanks again for doing this, Commissioner!)

 

Written by Alfonso Lamadrid

23 November 2016 at 6:20 pm

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Materials from the Chillin’Competition Conference

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ccconference

The 2nd Chillin’Competition conference took place yesterday; we very much enjoyed it and we hope all attendees and speakers did too. Once again, our gratitude goes to Commissioner Vestager, to Judge Forrester and to all other speakers; thanks to them we were able to have a deep but fun discussion about key issues arising in our discipline. Thanks also to our sponsors for having made possible a certain disruption of the conference market.

It’s not for us to evaluate the result of the conference, but it met our very own expectations. Any of you who attended is very welcome to write a review/suggestions/criticism as comments on this post. Next time, we warn you, we truly plan on changing competition law conferences as you know them; we may have been a bit too conservative this time. We have just received some excellent ideas from John Fingleton; if you have your own, please shoot them our way.

It was also great to meet a bunch of the readers of this blog [btw, the code word that we all used at the bar for the free drinks (“elephant”) does not work anymore; if you try it now people may look at you weirdly 😉 ]

In the course of the week we will be uploading some videos and pictures of the conference. For the time being, here are the presentations used by Pablo, Bill Batchelor, José Luis Buendía, Jorge Padilla and Scott McInnes:

chillin-competition_neutrality-everywhere_pablo-ibanez-colomo

chillin-competition_neutrality-in-distribution-batchelor

chillin-competition_neutrality-and-public-competition-law-jl-buendia

chillincompetition_neutrality-and-payments_mcinnes

chillincompetition_neutrality-in-distribution-j-padilla

A short selective summary of the event drafted by our friends at Gecic Law is also available here.

P.S. Some people have inquired about the use of the Swiss flag in the conference programme. As I explained in my introductory speech, the truth is that we did ask the Swiss embassy whether they had objections to us using their flag to illustrate the concept of neutrality, but they of course said they had no views one way or the other…

 

Written by Alfonso Lamadrid

22 November 2016 at 6:48 pm

Posted in Uncategorized

Full house at the 2nd Chillin’Competition Conference

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We are having a great day at the Chillin’Competition conference. We will be reporting on the substance in due course, but here is a teaser video.

By the way, we will be having post-conference drinks at around 18.30 at the Red Monkey (Rue de l’Aqueduc 109); feel free to join even if you did not register for the conference. The first round is on us  😉

 

Written by Alfonso Lamadrid

21 November 2016 at 3:47 pm

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Chillin’Competition Conference 2016 (Thank you!)

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As we are starting to prepare for our upcoming 2nd Chillin’Competition conference we wanted to take a minute to publicly express our gratitude to all of you for the interest (selling out in 6 minutes is quite a feat!), to our speakers (particularly to Commissioner Vestager for making the time) and to our sponsors.

We also apologize to all those of you who could not make it out of the waitlist; he hope to make up for that in future events.

Special thanks go to our sponsors; their support is what has enabled us to put together a conference with an exceptional line up of speakers and that is free for all attendees [who will surely all appreciate it, if only for the hot food and wine… 😉 ]

The final programme is available here: chillin-competition-conference-2016-final-programme

 

thanks

 

Written by Alfonso Lamadrid

17 November 2016 at 4:42 pm

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Nicolas Petit on “Moligopolism”

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nico

Our friend, longtime colleague and founder of this blog, Professor Nicolas Petit, has coined a new word to describe tech giants rivalry: “moligopolism”. As he has explained to us, the lenght of this paper (76 pages) is a very good metric for the opportunity cost of running a daily blog… We’re happy to read that Nicolas is on top of his game. The paper conveys a very original approach to competition in the digital economy, and is well worth a read.

Here’s the link to his paper https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2856502. This is the abstract:

This paper shows that the technology giants that antitrust agencies tend to characterize as entrenched monopolists can also be seen as firms engaged in a process of vibrant oligopolistic competition. Those firms – we refer to them as “moligopolists” – compete against the non-consumption in search of new and low-end market footholds. The failure of the antitrust structure to see that rivalry – its intensity may vary from one company to another – originates both in mainstream economics and applied competition theory. We believe those defects can be cured with a rechanneling of antitrust policy towards certain types of restraints, in certain types of market settings“.

 

Written by Alfonso Lamadrid

16 November 2016 at 9:37 am

Posted in Uncategorized

ICN Survey on Investigative Process

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printlogo

For the past several years, antitrust/competition law practitioners from more than 30 countries have participated in surveys developed by fellow practitioners, who serve as Non-Government Advisers to the International Competition Network (“ICN”). Past surveys were done to inform the ICN Agency Effectiveness Working Group and its Investigative Process Project (in 2014, the survey work was awarded NGA Contribution of the Year honors by the ICN).

The ICN has since issued a Guidance on Investigative Process report. As such, the 2016 practitioner survey will examine to what degree the ICN Guidance is followed in 14 markets: Australia, Brazil, Canada, E.U., France, Germany, India, Japan, Korea, Mexico, South Africa, Taiwan, the United Kingdom and the United States.

If you would like to take the survey, you can do so via this link. Responses should focus on your experiences before a specific competition enforcement agency. If a question doesn’t apply to your jurisdiction or you don’t know the answer, you can skip it.

The identities of survey participants will be kept confidential and care will be taken to present survey answers in a general manner. In addition, respondents have an opportunity to review the summary report in draft form before it is shown publicly.

The deadline for response is Wednesday, November 23.

 

Written by Alfonso Lamadrid

15 November 2016 at 11:27 pm

Posted in Uncategorized

Another combo: on fiscal State aid and geoblocking

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itechlaw

Last week I also did what Pablo calls a “combo” speaking first (on Tuesday) on State aid and taxation at a Lexxion seminar, and then (on Thursday) at iTechLaw’s European Conference in Madrid (pictured above). I guess it was useful to try to clear my head from what was happening in the real world.

At iTech Law’s conference I talked about geoblocking, particularly regarding intangible content protected by copyright, focusing in particular on the Pay TV investigation (on which as you know I am involved representing the UK’s independent producers and therefore perhaps not objective). I didn’t really say anything you haven’t read from me before on this blog, so I won’t sum it up again.

The slides are available here: itechlaw-madrid-november-2016_lamadrid

At Lexxion’s seminar on fiscal State aid I talked about two streams of quite a few joined cases on which my firm and I are involved regarding the Spanish financial goodwill (Santander/ Autogrill) and tax lease cases. The first saga has attracted a lot of attention as commentators –and the Commission- have tried to tie its fate with that of the investigations into tax rulings. I had avoided commenting publicly on the case but I feel more at liberty to do it now that the ECJ has announced that it will deliver its Grand Chambre Judgment on 21 December; no one can argue now that we are trying to influence the Court via our writings.

Pablo did write a comment on AG Wathelet’s Opinion (which suggested the ECJ to quash the General Court’s Judgment annulling the Commission’s decision) noting that the AG was proposing nothing short of a revolution (see here). One of the comments to that post suggested that this was not the case as what would have allegedly created this revolution would be the General Court’s Judgment. In essence, the crux of the discussion boils down to deciding whether in order to identify a given measure as “selective” the Commission needs to identify one or various categories of undertakings benefitted.

AG Wathelet thought that this requirement would open the possibility for tax benefits to artificially escape from State aid control (paras. 89-90 of the Opinion). The reason why I cannot be convinced is not only that there are a few Judgments that the Opinion directly contradicts (mentioned by Pablo and distinguished in a pretty striking manner in the Opinion itself) but also, and perhaps more tellingly, that until now no one has yet given us an example of a single State aid identified in the past 60 years that would have escaped State aid control under the test verbalized by the General Court in the Santander and Autogrill Judgments. In reality that case (as well as the tax lease stream of cases) do not bring about anything new; they only verbalize what was already implicit –given its obviousness- in the case law and the decisional practice.

The only reason why it was necessary to verbalize the principle in these two cases only had to do with the way in which the Commission investigated the measure. In the goodwill case the Commission thought it would be able to identify de facto selectivity, and when it realized that was impossible it felt forced to stretch the law concluding that a measure can selective even when it is open both de iure and de facto to anyone. The only way out following the opening of the case was to endorse the tautology that a measure is selective when it gives an advantage to some (regardless of who those are or how they are selected), thus blurring –again- the notions of advantage and selectivity.

Another of the problems of this approach (a perhaps even more serious one, not discussed in the Opinion but importantly underlined by AG Kokott in a parallel case) is that it would turn virtually every fiscal measure in every Member State into a selective measure and, hence, would also, thereby, turn the Commission into a tax co-legislator). In the tax lease case, the original sin contaminating the conclusion has to do with the last minute contrivances to limit the effects of the recovery order to investors (for more of my views on this case see the comments below this post). If the measure wasn’t selective as regards the investors, one cannot claim that they were the beneficiaries  -much less the sole ones- simply because they received a small fraction of a fiscal advantage generated by the measure.

My slides for this talk are available here: lamadrid_-goodwill-tax-lease

Btw, last week Lexis Nexis also published an all-you-need-to-know practice note on State aid and corporate taxation that I have co-written together with my colleague Miguel Angel Bolsa; it’s available here.

Written by Alfonso Lamadrid

15 November 2016 at 12:02 pm

Posted in Uncategorized