Chillin'Competition

The upcoming issue of the Journal of European Competition Law and Practice (JECLAP) features an editorial I have written on the use of the term “fairness” in competition law these days. I was particularly happy to contribute to this journal, which and which also boasts the nicest team of editors possible (well, and Gianni too).

JECLAP has very kindly authorized me to publish the editorial here on a free-access basis (any comments will be very welcome!); it is available here: https://academic.oup.com/jeclap/article/doi/10.1093/jeclap/lpx003/2996766/Competition-Law-as-Fairness

Some accompanying explanations are in order:

The term “fairness” seems to have made inroads into public portrayals of competition law (most prominently in salient speeches by Commissioner Vestager and AAG Renata Hesse). Some have reacted strongly into the use of this notion, seemingly due to fear that it may contaminate a realm of the law with even more subjectivity. Whereas I do share the sentiment that references to “fairness” cannot expand the reach of the competition rules, I also believe that a more fair society is a consequence of the right application of the competition rules and there is no reason to shy off from saying it explicitly. Competition law should not -and does not need to- be diverted to pursue fairness because it is already about fairness. Cast in this light references to fairness are not a way to divorce the discipline from economics, but to reconcile it with the public.

The editorial also contains, somehow in passing, the idea that efficiency is more useful as a guiding benchmark than as the ultimate goal of competition law. This idea is relatively common among progressive economists like Amartya Sen (my personal favorite) or Stiglitz, but it is relatively uncommon to hear it from experts in competition law due, I suppose, to the fear of being misinterpreted (which is what I try to avoid with the 8^th paragraph of my editorial). Admittedly, general economists tend to see competition law as one more economic policy tool, perhaps failing to entirely realize that competition law may also lead to the imposition of “cuasi-criminal” fines and that one cannot severely punish a firm simply because it is more efficient than rivals (much less for doing things better, which may or may not coincide with being more efficient).

That is why, as I explain in the piece, short term efficiency considerations have a valid and important role to play in our field. But at the same time having efficiency as a sole beacon may chart an unduly narrow path. There are other values, like freedom to compete, choice or equality of opportunity, that may be equally worthy. The challenge in this regard is how to turn these into an operational framework capable of providing the necessary legal certainty.

In this regard I am happy to be in the company of now Judge Paul Nihoul, also General Editor of JECLAP (see here), of some of my favorite specialized economists (see here) and of whom is perhaps the greatest antitrust academic so far, Philip Areeda. In Areeda’s words (quoted from the 6^th edition of his Antitrust Analysis textbook and which I did not have space to quote in the editorial):

– “The efficiency concept is at once powerful and weak: powerful because it is arguably the minimum necessary condition of any ideal economic system´s equilibrium, weak because it is not the only value considered important by our society”;

– “The economic model of competition also provides antitrust with a major value: efficiency. Other values impinge, however, to strengthen or retard the force of the unqualified competitive criteria. The task of antitrust, accordingly, is much more complex than simply moving the economy toward more nearly perfect competition”;

– “A free market may be seem as emphasizing competition as an aspect of human liberty. To favor competition for this reason relates to its assumed economic benefits but duffers because it emphasizes the social rather than economic merits of competition and is broader because it emphasizes opportunity and choice for producers and consumers even where fewer opportunities and choices might produce equally or more ‘efficient’ economic results”.

Rupprecht Podszun, Professor of Competition Law at the University of Dusseldorf, has recently published two posts outlining the reforms to the German competition law system proposed by the government. You really should take a look at them here and here.

As has been widely reported, part of the changes introduced in Germany are intended to capture concentrations in online markets. In any event, the single most significant (and no less than shocking) aspect of the reform is an almost blanket exemption from the application to the press sector of the national equivalent of Article 101 TFEU.

In case you were not aware, you read well. If this proposal goes through, German competition law would no longer apply to, inter alia, plain vanilla cartels among press publishers in the country.

This is a worrying development, for many reasons. First and foremost, it shows that the consensus in favour of the protection of the competitive process is fragile, even in the country with the oldest and most developed system in Europe. Unfortunately, many stakeholders see competition law as a tolerable annoyance during normal times. These same stakeholders are always ready to claim that there are exceptional circumstances that justify setting up cartels and legal monopolies. Even worse, many (perhaps most) politicians appear happy to give in if they believe it is in their (short-term) interest.

Will this development change something?

One could argue that the exemption of the press sector from German competition law will change little after all. Article 101 TFEU would continue to apply to publishers insofar as the agreements they conclude are capable of affecting trade between Member States. And the most problematic agreements, such as cartels (a precondition of which is substantial market power), will almost certainly meet this condition.

Suppose German publishers form a cartel to extract rents from online platforms (which, I suspect, is part of the overall plan). For this cartel to work properly, nearly all (if not all) publishers need to play the game (the Spanish ‘Google tax’ was an embarrassment, but the legislator at least understood this point). And such an agreement would certainly have an effect on trade between Member States.

The Bundeskartellamt does not have the power to exempt agreements caught by Article 101 TFEU (the limited scope of Article 5 is a clever feature of Regulation 1/2003). As a result, any industry-wide agreement would be vulnerable to challenge before a court, or before the European Commission. And if the agreement in question is a blatant cartel, I guess neither a court nor the Commission would have much choice. It might not be easy and there might be considerable external pressure, but the credibility of the whole system (which is a remarkable achievement of the European Union) would be at stake.

Bad news for free speech and pluralism

Some readers may argue that the above is irrelevant, as media pluralism and free speech are far more important than competition law. I agree. In fact, media regulation will always be one of my main areas of interest. But even from that perspective, I struggle to see how allowing cartels in the press sector can be good.

Fiercely independent newspapers that proudly defend their editorial line are essential in a democracy. Can the press fulfil its fundamental mission if it cosies up with politicians and exchanges favours with them? An unholy coalition between newspapers and politicians is certainly not better than an instance in which the independent press is criticised by those in power – which is undesirable, but criticism is at least an indicator that journalists are doing their job.

We competition lawyers know that, in an age of rapid technological change, the cartelisation of the press is unlikely to achieve anything meaningful. At best, it can only delay the inevitable transformation of the industry. The press is important for reasons that go beyond purely economic ones, but this does not mean that the sector is not subject to basic principles of economics.

Last Thursday I participated in the announcement of the first “30 in their 30s list” made by W@Competition, of which I was also happy to be a juror. Seen from the inside, this really was a neutral, independent exercise, and the women who made it onto the lists (available here) all very much deserved it (as also did many of those who did not), so congratulations!

Interestingly, however, this is an exception in many ways. Anyone familiar with awards, prizes and recognitions in our field realises that they are not always given on the merits; sometimes they are priced prizes, other times they are sponsored-for and in other cases they are simply a bit random. Pablo and I have typically been quite well treated by some of the organizers of some of these things so we think we are in a position to say these things.

Although, again, there certainly are a number of serious, well researched rankings and awards, others that don’t necessarily meet this criteria are mushrooming. People within the industry can distinguish the serious from the non serious, but other people can’t.

One example, a couple of weeks ago, we saw this  LinkedIn post by Damien Geradin explaining that he had been offered an “Internet Law Firm of the year” award which only required a payment of 2795 pounds. Apparently Damien responded that for that price he’d like to be named “Master of the Universe”.

So that gave us an idea. With a view to lowering barriers to entry in the awards market, and in order to serve the competition community, we have decided to create our very own awards, the Chillin’Competition “True Best of the Best, Really” awards.

The idea behind it is that anyone interested in a prize will get one;  you simply need to tell us what prize you would like to receive (the only restriction is that Pablo will keep the “True Best of the Best Academic Star of the Century” award, and that I  will compete with Damien for the “Best of the Best Master of the  Universe Award” (which I will win -because I created it- and will include in my cv and on business cards) 😉

Alternatively, you can also tell us something about yourself and then we will craft an award that suits you. For example, if you wrote part of a 1 page newsletter piece on, let’s say, the truck cartel, then we can give you  an award for the “True Best of the Best Contribution to a Professional Publication in the Automobile Sector”.

We could then give ourselves the award at a dinner ceremony (i.e. a pretext to have some laughts at a tax deductible dinner).  We are only partially kidding; if we have enough applications we will do a dinner, trust us.

Among pending cases before the Court, Coty certainly stands out. Its practical implications are difficult to overestimate. The judgment will have important consequences for online commerce and the luxury industry, on the one hand, and major Internet players, on the other. Coty is so sensitive that most practitioners (including my co-blogger extraordinaire) are particularly cautious not to comment publicly about it. Enjoy the silence, some say. For those who like to break it, here are some thoughts on the case.

The fundamental question raised in Coty is in fact fairly straightforward. The Oberlandesgericht Frankfurt am Main asks, in essence, whether a prohibition on the members of a selective distribution system to sell via online marketplaces amounts to a restriction of competition by object. In the same vein, the national court asks whether the preservation of a ‘luxury image’ is an aspect of competition that is compatible with Article 101(1) TFEU.

The point of selective distribution is to ensure that only retailers that satisfy certain criteria are entitled to sell a given product. By definition, this method of distribution only works if the retailers that are members of the system are prevented from selling to third parties that are not. Accordingly, a clause prohibiting resales to non-members is a textbook example of an ancillary restraint that falls outside the scope of Article 101(1) TFEU altogether.

Against this background, one key issue in Coty is whether prohibiting retailers from selling via online marketplaces is comparable to a clause prohibiting sales to third-party retailers. It is not unreasonable to argue, in this sense, that the objective purpose of the two clauses is the same. From this perspective, an online marketplace ban is simply an adaptation of a contractual device to the challenges that are specific to e-commerce. If so, there would be no reason to treat the two clauses differently – again, it is all about legal consistency.

According to the case law, however, it would not be sufficient to conclude that a marketplace ban is identical in its nature and purpose to a clause prohibiting resales to non-members of the system. The creation of a selective distribution system only falls outside the scope of Article 101(1) TFEU if it relates to a ‘legitimate aim’. If it does not, any clauses would be restrictive of competition by object. This is something that the Court emphasised in Pierre Fabre. It is a sensible point that captures the essence of the case law on restrictions by object particularly well.

The reason why manufacturers of luxury products rely upon selective distribution systems is not a secret. When products are sold through independent retailers, their reputation may suffer. There is also a risk that end-users’ experience is not the same in all stores. By imposing a set of a criteria to be satisfied by retailers, a manufacturer of luxury products can preserve the reputation of its products and a uniform end-user experience without resorting to vertical integration (which can be costly and thus limit its ability to expand or even enter the market).

So does a clause – for instance, an online marketplace ban – that seeks to preserve the reputation of a product and the uniformity of a distribution system (or a ‘luxury image’, if one prefers) relate to a ‘legitimate aim’ within the meaning of Pierre Fabre? The Court ruled in Pronuptia that a clause aimed at achieving these two objectives is not restrictive of competition. It would be reasonable to argue that what is true of franchising agreements must also be true of selective distribution. After all, a franchise constrains retailers’ freedom considerably more than a selective distribution system.

This analysis would also need to consider the counterfactual (about which Alfonso wrote last week). Is it reasonable to assume that manufacturers of luxury products would rely upon independent retailers even if they are not entitled to use contractual mechanisms aimed at preserving the reputation of their products and a uniform end-user experience? Is it unreasonable to lay down a rebuttable presumption whereby clauses aimed at preserving the brand image of a product are objectively necessary and thus compatible with Article 101(1) TFEU?

As far as I have been able to gather, the Commission appears to agree with the above and does not see online marketplace bans as hard-core restraints (which I understand also means, in this case, they are not a ‘by object’ infringement either). Apparently, it has made this clear in its submission to the Court.

There is case law supporting the perspective of the Commission (the Court dealt with three cases on ‘luxury selective distribution’ back in 1980 that implicitly endorse the above). However, a passage in Pierre Fabre can be interpreted as suggesting that a selective distribution system is not justified if it seeks to preserve the brand image of a product (the Court held in that case that ‘the aim of maintaining a prestigious image is not a legitimate aim for restricting competition’).

Thus, Coty will have to address the seeming tension between these rulings. This is not unusual in preliminary references. If Pronuptia suggests that clauses aimed at preserving reputation and uniformity within a distribution system are (presumptively) compatible with Article 101(1) TFEU, Pierre Fabre suggests the opposite. Perhaps the scope of Pierre Fabre is confined to outright online sales bans (which is what the case was about), or perhaps not. The answer, in a few months.

It can hardly get better. This year we are celebrating the 20th anniversary of the competition law course that Luis Ortiz Blanco and I co-direct in Madrid (I was first involved in its 10th edition, as a student), and we wanted to do something special to commemorate it. And what we will be doing is bringing the Spring Meeting to Madrid, or sort of (and giving you a perfect excuse for a deductible getaway that does not involve travelling to D.C.)

On the 10th of March we will be hosting a seminar to discuss 20 years of case law in competition law with a truly stellar line-up of speakers including the current US Assistant Attorney General for Antitrust (Renata Hesse, appointed by Barack Obama, sigh…), the Commission’s Deputy Director General for Antitrust (Cecilio Madero, who is among the very few having participated in all 20 editions of the course), the ECJ Judge (Andreas O’Keefe) who wrote, among many others, Cartes Bancaires and Mastercard which have been recurrent themes in this blog, some of the Commission’s officials most closely connected to the most important cases in recent years (namely Nick Banasevic from DG Comp and Nicholas Khan and Eric Gippini from the Legal Service), Milan Kristof as representative of the ECJ référandaires behind the big cases, academic/blogosphere stars (like our very own Pablo and Jesús Alfaro), a selection of the new generation of top-notch Spanish economists and lawyers (Susana Cabrera, Elena Zoido and Alfonso Gutiérrez) and the most-up-to-date person in competition law and future literary star Lewis Crofts.

An overview of 20 years of competition case law

Introduction: Luis Ortiz Blanco and Alfonso Lamadrid

15.30-16.40- Cartels and other anticompetitive agreements: Alfonso Lamadrid (moderator), Andreas O’Keefe (former Judge at the European Court of Justice), Nicholas Khan (Legal Service, European Commission), Jesús Alfaro (Professor of Law, Universidad Autómoma and Linklaters).

16.40-18- Unilateral conduct: Milan Kristof (Référendaire, ECJ; moderator), Pablo Ibañez (LSE and College of Europe), Nick Banasevic (Head of Unit, DG Comp, European Commission), Eric Gippini-Fournier (Legal Service, European Commission).

18.20-19.30 –Merger control: Lewis Crofts (Chief Correspondent, MLex; moderator), Susana Cabrera (Partner, Garrigues), Elena Zoido (Senior Vice-President, Compass Lexecon), Alfonso Gutierrez (Partner, Uría Menéndez).

19.30- Closing keynotes: Renata Hesse (Acting Deputy Attorney General for Antitrust, US Department of Justice) and Cecilio Madero (Deputy Director General, DG Comp).

***

For further information, click here: An overview of 20 years of case law (10 March 2017)

A lot happens in EU competition law, and very fast. As a result, we tend to forget discussions, doctrines and authors all too soon. One of the (many) upsides of being an academic is that I am less subject to this ‘tyranny of the present’ (read: I have more time). I take great pleasure in reading distinguished authors, even if it often leads to some embarrassment – we think we have just come up with a new idea only to find out that someone has already developed it, and more eloquently that one would ever be capable of doing.

I have recently been reading some of Giuliano Marenco’s work. I thought of saying a word about him since some of our readers – many of whom are undergraduate or postgraduate students – may never have heard this name before. Giuliano Marenco is probably one of the biggest brains ever to have worked at the Legal Service of the European Commission (he retired about a decade ago). It transpires from his crystal clear writing (irrespective of the language) that he was an effective advocate.

As a lot of good writing, some of Giuliano Marenco’s articles have not lost a bit of their topicality. They are as lucid and relevant today as they were 20 or 30 years ago. This is so because they display a very rare understanding of the underlying issues. Here is a personal top three that I would recommend to any competition law student (note to self: find an excuse to include at least one of them in future years’ syllabi):

• ‘Competition Between National Economies and Competition Between Businesses–A Response to Judge Pescatore’: The great Pierre Pescatore sometimes held controversial views, for instance in relation to the direct effect of GATT/WTO provisions and about the scope of EU competition law (which he argued could be used to strike down national legislation with anticompetitive effects). In this article, Marenco skilfully challenges the second of these claims and, in the process, displays a lucid vision of the interaction between the EU and national legal systems, and of the limits of what can be achieved under EU law. That is an eternal topic, and the paper will definitely make some readers think about some ongoing debates…
• (with Karen Banks) ‘Intellectual property and the Community rules on free movement: discrimination unearthed’ (1990) 15 European Law Review 224: Anyone who follows the blog knows that I have a keen interest in the interface between EU law and intellectual property. This is one of the best two or three articles I have read on the question. It is very useful to understand the debates about the exhaustion of intellectual property rights, which is not the easiest of topics (and which, I concede, is not the most attractive of topics either, but this fact does not make it any less important). It also does what good legal research should do: uncover guiding principles that are implicit in the case law.
• ‘La notion de restriction de concurrence dans le cadre de l’interdiction des ententes’, published in the Melanges en hommage à Michel Waelbroeck (Bruylant 1999). I keep a paper copy of this piece preciously, as it is difficult to find. I include it because it presents an approach to Article 101(1) TFEU that is almost forgotten (the piece is likely to be very different from any article that is published these days). The interpretation advanced did not win the day (or so I think, at least), but it is thoughtful and sophisticated. It is also useful to understand where we come from.

[The picture is an example of the wonders of Google images: it seems that it dates back from his years as a High School student, and it is the only picture of him I was able to find!]

Global Competition Review has just opened the voting window for its annual awards.

Among the 5 nominees for the Academic Excellence Award (given to “an academic competition specialist who has made an outstanding contribution to competition policy in 2016“) are my current and former co-bloggers, Pablo Ibañez Colomo and Nicolas Petit, which is great news and a testimony to their influential work, also here. They are joined by Wouter Wils, Ariel Ezrachi and the University of East Anglia’s Centre for Competition Policy. You can vote for one of them here.

Also, today is the last day to vote for the Antitrust Writing Awards. You only have to click on this link and then on the 5 stars.

Finally, the clock is ticking for those of you interested (you should be) in attending W@competition’s upcoming conference on contemporary competition developments; you can register here. The 30-in-their-30s lists will be disclosed then.

And speaking of awards, today we delivered the prizes to the 3 co-winners of the meme competition. We just received the meme below from one of them in Copenhaguen…

Few seem to have remarked the great importance of the Judgment issued by the UK’s High Court of Justice on Monday this week in the Mastercard private litigation case.

This case is the most relevant instance of practical application of the legal criteria set out by the ECJ in its two leading cases so far on multi-sided platforms. It constitutes highly relevant guidance for the future, including for several high-profile ongoing cases (in some of which I disclose to be involved) (for more on this see in particular prior discussions on Pay-TV and Android, here and here). It also fits exactly with the arguments Pablo and I developed in our piece on The Notion of Restriction of Competition regarding the key importance of the counterfactual assessment (see particularly section 2.1.1 of the piece).

As you will remember the ECJ’s Judgments in Cartes Bancaires and Mastercard –issued on the same day- converged in the message that multi-sided considerations should not play a role at the tail-end of the analysis, but rather be considered as part of the economic and legal context prior to examining whether a restriction exists in the first place under 101(1) (see Cartes Bancaires, paras. 73-99) and Mastercard (paras. 179-182). Importantly, at this stage the burden of proof lies on the Commission.

What this means in practice is that one cannot examine a practice that affects one side of the market in isolation; one also needs to look at how it contributes to balancing all sides of the platform. In other words, would the business model be viable in the absence of the practice at issue? That is the counterfactual assessment.

This exercise may show that the practice is indispensable, or that it could be indispensable for the platform to operate (and in the face of “uncertainties” the practice will be considered legal, as shown by the GC’s Judgment in O2) [which ties very well with the limiting principles I proposed here (in writing) and here (in ppt format; slide 13), as well as with what Pablo explained last week in his GCLC presentation on dynamic markets; see here, slide 8]

In the Mastercard Judgement the ECJ actually used this analytical framework for the analysis of the counterfactual (para. 161, also distinguishing it from ancillary restraints at para. 173). And it also identified an error of law in the Commission’s choice of the counterfactual in the absence of the agreements, as it had failed to consider whether it was a “likely” counterfactual. (para. 169). Importantly, the reason the Court ultimately did not annul the GC’s ruling and the decision was because Mastercard had failed to “claim” that its scheme would have collapsed in the counterfactual scenario (para. 173). The ECJ did therefore rule that the MIF at issues was restrictive of competition in the sense of Art. 101(1) and could not be exempted under 101(3) [for our comments on the also very interesting 101(3) leg of this case, see here and here].

Several large retailers decided to initiate follow on actions in the UK on the basis of the Commission’s decision as confirmed by the ECJ Judgment. It may have seemed like a home-run.

On Monday, however, the High Court ruled against them concluding, contrary to the ECJ, that the MIF was not restrictive of competition in the sense of Art.101(1) relying precisely on a counterfactual assessment.

There seems to be some surprise at this apparently diverging outcome but, frankly, it is not that surprising. Why? Because Mastercard did learn the lessons from the ECJ’s Judgment. As I explained before, para. 173 of the Judgment explains that “it was not in any way claimed before the General Court that MasterCard would have preferred to let its system collapse rather than adopt the other solution” and the key para. 180 says that the counterfactual argument had only been invoked by an intervener too late before the ECJ but was not part of the arguments submitted before the General Court. The ECJ therefore did not consider it.

As revealed by an MLex headline from last year, Mastercard learnt the procedural lesson very well:

As you will notice, this is exactly what the ECJ said Mastercard did not do before it. In the damages case, by contrast, Mastercard did put all the eggs in the basket of the counterfactual argument, and it won.

Actually, the word “counterfactual” is used about 190 times in the High Court’s Judgment.

And the winning argument was indeed what the Court refers to as the “death spiral” argument, pursuant to which in the counterfactual scenario other platforms would have killed Mastercard, whose scheme “would not have survived (…) in a materially and recognisably similar form“.

For an analysis of how this analysis was conducted on Monday’s (pretty lengthy but excellently written) Judgment (including on important issues related to the burden of proof or the differences with the notion of ancillarity), stay tuned for the second part of this post.