Chillin'Competition

In the past few weeks some friends and readers of this blog have asked us to help advertise a few interesting events, so here they go:

-On 2 May 2017 the College of Europe’s GCLC will host its 9th Lunch Talk; the topic is “Algorithms and Markets: Virtual or Virtous Competition”. It is a must-attend, not only because of the subject-matter, but also because of the speakers: Maurits Dolmans, Ariel Ezrachi and our blogger emeritus Nicolas Petit, with Pascale Déchamps acting as moderator.

-On 4 May 2017 our friends at ERA will be organizing an afternoon workshop on  Dawn Raids and Requests for Information in Competition Cases: Recent Trends (which, for those interested, will also be streamed live; see here). We had discussed these issues in too many posts to bother including the hyperkinks, but the idea is that they are certainly of interest.

-On the same day, 4 May 2017 the ABA Section of Antitrust Law will be hosting a free event on the very topical issue of merger control and innovation.  The event will take place here in Brussels. For more info, click here. [For Pablo’s earlier post on the topic, see here]

-On 12 May 2017, an international conference will be held in Amsterdam on the theme “Economic evidence in competition lawand the future of the” more economic “approach“. The aim of this conference is to make a systematic analysis of the role of economic evidence in competition law proceedings. The speaker line-up is truy excellent and includes representatives of the General Court of the EU, national courts, the Netherlands, UK, and German competition authorities, legal practice and academia, including some good friends.

-On the same day, 12 May 2017, Queen Mary’s Interdisciplinary Centre for Competition Law and Policy (ICC) and Baker McKenzie will be hosting their Annual Conference in Brussels under the title “Trends and Developments in Global Competition Law”. Click here for the very interesting programme.

-On 15 May 2017 the newly launched Lexxion Journal CoRe (European Competition and Regulatory Law Review) will be holding a symposium titled “Competition Law and Regulation: Boosting E-Commerce in the EU’s Digital Economy”. Our very own Pablo will be participating. For more info, click here.

-On 18 – 19 May 2017, ERA will be hosting a most interesting event on State Aid Proceedings and Litigation (ah, an area where litigation is fortunately still relevant!).

-And on 29-30 May Nicolas Petit and his colleagues will be hosting in Brussels the LCII-TILEC Conference on Innovation, Research and Competition. The conference offers an interesting forum for debate on topical issues in SEP licensing and standard setting at the intersection with competition law. The panels consist of renowned experts from European institutions, academia and private practice. The programme is available here Program LCII-TILEC Conference SSO

There are good chances that many of you have read/heard me say before (the last time towards the end of this speech) that whilst competition law is important, there are many more important things, some of which should not be subject to the competition rules, or even to competition.

Most jurisdictions contemplate legislative or judge-made specific derogations from application of the competition rules. Those derogations, and the way they are interpreted, are actually quite telling about a given society and its values:

In the EU, for instance, the Treaty provides for derogations for services of general economic interest [something largely and effectively called into question in a stream of cases in which I have been working for some time now; see here for one of them]. for defense or for agriculture. The EU Courts have also recognized that certain areas enjoy precedence over competition law (this is the case, for example, of collective bargaining agreements (in Albany). Then there are also a number of exceptions or special rules that apply regarding some areas (e.g. sports) or national interests (see Art. 21 of the Merger Regulation).

And in the US, well, there is an antitrust exemption for baseball….

The preliminary reference (C-671/15) in the French endives (argh..) case brings these key issues back to the fore. Last week we sort-of-commented jokingly on AG Wahl’s Opinion (see here), but today we want to go beyond easy endive puns and instead put the issues on the grill. Whilst the case is about the boundaries of the agriculture derogation, the rationale applies to policing the confines of any exemption or derogation.

The legislative exemption as such is not the subject of the debate (it is accepted that some forms of coordination and concertation on the part of producers are needed for them to carry out the functions that EU law attributes them, namely those of adjusting production to demand, reducing the costs of production and stabilizing producer prices). In fact, both Art. 42 TFEU and the case law give precedence to the Common Agricultural Policy over competition policy. The case at issue is rather about practices (in this case a fixing of minimum prices, the agreement of quantities placed on the market and the exchange of strategic information) not referred to in the “general derogations” but that are somehow linked to those objectives (some argue that so much that they should benefit from “specific derogations”). In a nutshell, AG Wahl considers that only practices that are strictly necessary for the fulfillment of the tasks attributed to producer organisations may escape the reach of competition law. Conversely, he understands that practices that merely contribute to those tasks cannot be exempted from the competition rules.

This is an approach that fits squarely within the principle that exceptions are to be interpreted narrowly. Actually, a very similar logic has been endorsed by the CJEU, the Commission and national competition authorities regarding collective bargaining in the wake of Albany. Admittedly, as we know well in the competition field, requiring indispensability (something to be “strictly necessary”) equates to setting a pretty high burden, more than a requisite of “necessity and proportionality” more typically applied for State measures to be able to benefit from derogations under EU Law or, within competition law, to sporting regulations following Meca Medina. Another valid analogy could be drawn with Deutsche Telekom, where the Court ruled that the existence of sector regulation only precludes the application of the competition rules when it eliminates any possible scope for autonomous action on the part of the firms at issue.

Interestingly, when attempting to discern what is strictly necessary to the fulfillment of the tasks assigned to producer organizations, AG Wahl places the greater emphasis not so much on the actual necessity link but rather on the identity of the undertaking(s) adopting the practice (or perhaps in doing so he bridges the two elements). In essence, he considers that only practices adopted within a given producer organization (or association thereof) actually in charge of managing the production and marketing of the product concerned can escape the competition rules. On the other hand, he proposes that practices within or with entities not responsible for marketing for their members products be subject to competition law. This is interesting but in my view (and this is just a first thought or a thought in progress) not may always be such a bright line, as some agreements with third parties might in some cases be necessary to practically implement what is decided within a given organization (admittedly, these questions of severability are pretty thorny and largely unresolved; for a related comment on this point see the discussion on “fruit agreements” here).

We won’t go into how he applies these principles to the facts of the case (which at first sight I think makes perfect sense if you agree with the bright lines proposed) as we are more interested in the general logic. More than other times, these are our first impressions after a quick read. As always, your thoughts would be most welcome.

Fernando Castillo de la Torre and Eric Gippini Fournier have produced what I certainly one of the most interesting competition law books on the market. Readers of this blog are already familiar with the authors: Eric is one of our Friday Slots interviewees (see here), and Fernando is the author of the downloadable compendium of cartel law that broke some of our records last year (see here); for those interested in an update on 2016 cartel case law, a gift is available here: Cartel case law 2017 (Castillo)

Their publisher sent us their book for review. Reading the book over the Easter holidays was actually enjoyable (in my defense, I had this review to write; Pablo on the other hand read it out of pure enjoyment…).  Admittedly, my review does face a problem, which is my lack of objectivity. They are both friends and some of the people with whom we most enjoy discussing antitrust issues. As President Lenaerts’ notes in his foreword to the book, each of them has acted for the Commission in over 300 cases before the EU Courts (including many of the 102 and 101 seminal cases we have all studied). Few people have their inside-out, theoretical and practical, historical and current, knowledge of the law. Their knowledge is not only encyclopedic, but particularly in the case of Fernando, also based on an scary photographic memory (he knows by heart case numbers, paragraphs and the most tiny details of cases….).  And I know well what I am saying: I have worked against and with Fernando on a number of cases, and only at present I oppose Eric in, I think, 32 pending cases before the General Court and the Court of Justice.

In his interview with us back in the day, Eric said that “[t]he best antitrust books are slow food, the result of a long process by one or two cooks, not more”. This book meets both requirements, it was slowly cooked by only two chefs, knowingly for the past 8 years, and unknowingly for perhaps a couple of decades.

Enough about the authors’ authority; let’s move to the substance. Importantly, the book is not about black letter law. The book explores issues of evidence, proof and judicial review based on a systematic analysis of a vast amount of cases. And I mean cases, not case law. Anyone who has experience before the EU Courts is well aware that reading Judgments does not provide one with a full understanding of the case, of the evidence of the debates and, therefore, of proof and judicial review. This book builds on underlying knowledge of facts, techniques, approaches and mindsets that are not always –or almost never- evident from a mere reading of Judgments (not that many people read Judgments in any case…). Their effort to build on that knowledge and systematize it or discuss it comprehensively is particularly important in an area where, as they note, EU Courts “tend to be reluctant to develop general theories and would rather decide on the facts of the case”.

You will find in the book thorough discussions of general rules on the assessment of evidence, specific discussions on single and continuous infringements, duration, defenses and fines, followed by a most useful assessment of the probative value of different types of evidentiary means [these are, by the way, topics on which they had written extensively before and on which I have also given my views, although so far only in relation to cartel law (see here); another friend of this blog and colleague of Pablo, Andriani Kalintiri, has authored two excellent pieces on this, see here].The book also includes two chapters on judicial review centered on how judges assess evidence and on the different standards of review that Courts apply, in reality, beyond semantics.

The book states and summarizes the state of the law, but it does more than that. The authors also provide their personal insights and views on the issues they discuss. This means that reading the book will give you further objective knowledge and also additional elements for debate. It also means that, inevitably, there will be points on which the reader may disagree with the authors or where one would like to go even deeper into the debate. I, for one, share many but not all of their views and would have perhaps liked a more extensive debate on evidence, standard and burden of proof in conducting counterfactual assessments (a topic that is touched upon in the book, but not extensively, despite the Commission’s struggles -and even Court defeats- in past and ongoing cases). For a work with a scope as large as that of this book, however, the authors have remarkably managed to treat a huge number of issues with just the right level of depth.

In the book you will also find  a [spoiler alert] reasoned defense of the case law, the current system of enforcement and judicial review.  To be sure, they note that “the temptation to argue that courts apply ‘light’ or ‘heavy’ standards, depending on the outcome, is high when the person has represented the losing side” and, whilst there is certainly some truth to this observation, the fact that both authors have represented the winning side in an overwhelming majority of cases may perhaps also influence their view [with this I’m now on the verge of losing a free beer from them for this review….]. But even, or specially, those who may not share the author’s views should read the book, for nowhere else they will find an open, bold and tightly argued explanation and defense of those views, which in their large majority hold sway within the Commission and the Courts. In my view, regardless of agreements or disagreements, understanding these views in indispensable to anyone working in this field.

In sum, this is a one-of-a-kind contribution to the competition law literature and, truly, a must-read not only for litigators, but for any competition lawyer, for I have always believed that any argument in an administrative case should be framed with  eventual judicial scrutiny in mind. Unless you are willing to read some few hundred Judgments and process them systematically, the only available option is for you to read the book.

You can buy it here.

Should you have doubts about my standard of (book) review, I can produce evidence to support my conclusions: the freely downloadable chapter available here should constitute proof of everything I say in this review.

Enjoy!

 AG Wahl delivered two interesting Opinions last week, one on excessive pricing and one on endives. We will comment on the excessive pricing Opinion next week. For now, we bring you a light endive aperitif that enables us to comment on two of our preferred topics: Mr. Wahl and, well, that vegetable…

Indeed, AG Wahl’s Opinions have provided regular food for thought on this blog. In a very short period, and one of relative scarcity of developments, he has had the opportunity to meaningfully contribute to some of the most interesting debates in current competition law and we have followed it all closely, be it on restrictions by object (Cartes Bancaires, see here and here for our comment), on inspections and fishing expeditions (Deutsche Bahn, here and here for our comment), on the limitations to requests for information (Cement cases, here and here for our comment), on the notion of restriction and on the role of facilitators (AC Treuhand, here and here for our comment) and on exclusivity rebates (Intel, here and here for our comments). He was also kind enough to accept our invitation to speak at our first Chillin’Competition conference as well as, most recently, at a seminar in Madrid.

On the other hand, endives…As odd as it sounds, once upon a time this blog was identified with endives. After all both are relatively successful and no one understands why… The fact is that we were the first to react to the endives cartel (see here, including expert views, recipes and pieces on the role of Belgian endives in US politics), given the great interest we created the “Endive Brainstorming Room” (which triggered some of the most profound thoughts in the history of competition rules, see here), we noted that their relationship with competition law was discussed during French Presidential debates (ah, the days when people discussed endives instead of EU referendums!; see here).

Some of you will even remember that our brave pieces of legal journalism on endives [which should definitely have earned us the Antitrust Writing Award in the Belgian Vegetables category 🙂 ] even brought us legal trouble, when Chillin’Competition faced a legal challenge whereby we were asked to abide by endives’ right to be forgotten (see here).

Given our unparalleled coverage of AG Wahl and of endives, we can’t help but think that this was a perfect (and sadly missed) opportunity for the AG to have introduced blog citations into the practice of the CJEU. I guess I’m nostalgic of the days when the great and late AG Ruiz-Jarabo would refer to, for example, Jack Sparrow and Pirates of the Caribbean in his Opinions (see my comment to this post). And, moreover, don’t they say that blogs have now surpassed law reviews?

Pablo and I are so committed to elevating blogs to the category of proper academic commentary that we hereby commit before all of you to do the following:

If AG Wahl cites this blog in any of his future Opinions, Pablo and I will race each other for 5 laps around the Court of Justice in Luxembourg holding endives and wearing shirts from the Swedish national football team (unless he has other preferences) 😉

*Small print note: this commitment is not solely restricted to AG Wahl. If any other AG cites us before, we will do the same, only with apparel from their country of origin or of their choice.

P.S. Ah, yes, we haven’t yet commented on the substance of the Opinion. We’ll leave that for the next post.

It’s that time of the year when everybody receives awards and then humbly publicizes them on the social media 😉 I had several nominations for the Antitrust Writing Awards and was also nominated to GCR’s Academic Excellence Award. I am proud to report that… I did not win any!

Chillin’ Competition has nonetheless indirectly won some awards and recognitions (and I suppose part of my nominations):

• First, our co-blogger emeritus, Nicolas, did receive those accolades in DC. Congratulations!

• Second, a list of the 10 best LLMs in Competition Law came out (see here) and Chillin’ Competition has links with 4 of the 10 best ranked programmes worldwide (LSE, Liège, College of Europe and Brussels School of Competition). I am proud that the LSE specialisation (which was launched in 2013) ranked #2. Congrats to the students and my colleagues!

• Last, but by no means least, Chambers Europe, released today, ranks my co-blogger Alfonso as the only Brussels-based ‘Star Associate’ for competition law (see here , observing that he ‘wins plaudits from sources for his well-regarded competition law blog. He is experienced in the field of technology, frequently advising on cartels and state aid’. Chambers also quotes a client saying that he is ‘widely regarded as the rising star in EU competition law’ (no less!) and that he is ‘smart, hard-working, practical and business-minded’ (what comes across as an understatement). Alfonso repeats his ranking as ‘Star Associate’ in Spain, although the quote included there is, say, somewhat less spectacular [‘sources say: “Academically he is very able, and he also has very good English”] 😉 No matter how proud I am, I look forward to him losing these titles soon.

And to round up the self-promotion, here are the links to our most recent appearances in the press, namely Alfonso’s quotes on Politico and Cinco Días on cartel issues, and my views – featured yesterday in El País – over access to the civil service in Spain (an issue which is dear to my heart and in many ways much more important than competition law).

Given our justified absence from the Antitrust Spring Meeting it was only today that I became aware of comments by a former DG Comp Director General, Philip Lowe, referring to the EU Courts’ case law as “Jurassic” [GCR subscribers can read more about them here].

We were planning to comment on two interesting Opinions from AG Wahl issued yersterday, but reading the comment above triggered some thoughts that I think are worth sharing here, if only because you will rarely hear them. The people who still today hold grudges about my earlier posts on the Commission’s Legal Service and on CJEU President Judge Lenaerts will most likely disagree with this one too, but, hey, the reason for this blog is precisely to foster discussion.

Describing the case law as outdated, ordoliberal (one of the most abused and misunderstood notions in competition law commentary) or nonsense often makes lawyers score brownie points with peers and clients. And they are easy points, because it is not like the Court is going to intervene in the debate to defend itself. In my view, however, that criticism is misplaced, unhelpful and misleading. My personal views follow:

On necessary criticism

1. First of all let me make clear that I view the criticism of the case law as useful and necessary, even when misplaced. Much like what happens with the press and politics (see here), having lawyers and academics –or Advocates General- commenting on cases and suggesting improvements is indispensable. Judges do not live in an ivory tower (actually some of them do work in an oddly gilded one) and without criticism and friction there would be less progress and fewer refinements. However misplaced the comment, I think the Courts would do well to listen, and, as far as I know, they do.

On being realistic and objective

2. Second, I certainly do not think the Courts always get it right. How could they? Does anyone? The Luxembourg Courts, like any Institution or organization where human input is the main factor (including the Commission, law firms and companies) are far from perfect. Justice is supposed to be always blind, and fair, and etc., but justice is administered by Judges, who are human, some of whom are better qualified than others, some of whom have pre-established views, some of whom are more hard working than others or care more than others.

3. Actually, and my experience on this has been consistent, once you get to know from up close any institution, organization (company, university, friend) or person you very much admired, you demystify them and their flaws become more apparent. After 10 years dealing with the Commission and the Courts, the ideal image of the Institutions that I had in my mind as a student is no longer there. I have had good and bad experiences with both, sometimes one simply agrees or legitimately disagrees, other times one may be surprised, disappointed or frustrated. I have been there and have had moments (including some pretty recent ones) where you feel you lost your innocence. But having had victories, defeats and a fair deal of frustration is, I would like to believe, what that makes me more objective.

4. I do disagree with some Judgments (funnily enough, that happens mostly with the ones I lose) and we actually run a blog where we tend to comment on the contentious cases on which we disagree, much more than with the ones we agree, as some of you have noted in the past. I disagree, for example, with some of the case law on exchanges of information and concerted practices (e.g. T-Mobile and its fruits) or with the recent case law on “behavioral selectivity” in State aid and Pablo has been vocal when it comes to the case law on fidelity rebates. Much of this is inevitable, for we all know what happens with legal principles (see here). And we will continue to voice out our disagreement in individual cases because we think it may perhaps contribute to some advancements.

On the real status of the case law

5. In spite, or because, of the above, a general criticism of the case law or of the Courts is entirely wrong and wholly unfair. For all the flaws of some individual cases, the case law, also in the competition field, is for the most part an exercise of common sense. And if there is an Institution that has crucially and steadily contributed to European integration (largely) isolated from petty politics, with clear ideas and progressive Judgments, that has been the Court of Justice.

6. The case law is not Jurassic, it is simply not as comprehensive and systematic as we would ideally like it to be and, admittedly, sometimes not as consistent as it may appear. But it arguably can’t be. The Courts decide on the cases, facts, theories and pleas brouught before them, they don’t write competition law textbooks. As brilliantly explained by Pablo here, the reason why the most controversial part of the competition case law (abuse of dominance) remains somehow unsatisfactory has to do with the paucity of cases and, importantly, with the very few preliminary references in the area. It is only in preliminary references that the Court of Justice has the opportunity to craft consistent analytical principles and frameworks (which nevertheless are not always followed upon -think for instance of the “indispensability” requirement in all cases related to “access- ; we should come back to this one day). The preeminence of direct actions against Commission decisions, the margin of discretion granted to the Commission in this setting and certain litigation strategies have resulted in some not entirely consistent Judgments. Also, a careful analysis of the case law unequivocally shows that it does evolve, it is not Jurassic nor fossil, it evolves at its own pace, following consensus. Recent cases like Post Danmark I or Cartes Bancaires, for instance, are good examples. On closer look, the case law makes much sense than is tipically said. In my certainly personal view, failing to see or acknowledge that hinders our ability (and credibility) to advance some refinements of that case law.

On where the real risks lie

7. The only risk for the case law to one day become outdated has to do with the ongoing de-legalization of EU competition law. We are now at a stage where the law is perceived as an inconvenience. The Commission prefers to deal with cases on a very factual basis (to maximize its chances on appeal) and to favor out-of-court negotiated solutions), particularly on the most complex cases. Analytical legal frameworks are largely ignored and replaced by remedy negotiations. As rightly noted by General Court Vice-President Marc van der Woude only days ago (MLex suscribers can read it here), there are areas of competition law that are disappearing from the judicial radar screen, with the risk that the case law may stagnate. That is the real problem. As the GC seems to be acknowledging, this is also a result of parties perceiving that going to Court would not yield results, and recent signals suggest something may be about to change. Admittedly, the shift in the center of gravity may lead to more preliminary references and more CJEU intervention on the law, which would be useful, but I would rather not sideline the competition experts also sitting in the General Court and the detailed guidance and that comes from annulment actions.

On how to improve judicial review, and the appearance of judicial review

As everything, judicial review in the competition sphere may be subject to improvements, but not all of them depend on the Courts; some depend on the Commission’s policy and some depend on the ability of applicants and of other parties to judicial proceedings, but there are a couple of things that could be done.

8. To me, the most important issue is transparency. I have made this point before (see here, particularly the comments, and here). Judicial review and lawyering (and the assessment of lawyers’ work) would significantly improve if Court submissions/briefs were public and if there were recordings or transcripts of hearings. This would favor the Court above everyone else. The criticism would diminish, as external observers are often unaware of the care with which some (not all) Judges and clerks analyze and understand every argument and detail in a given case. As an example, some of my colleagues had a hearing this week that, regardless of how it is eventually decided, revealed a thorough understanding and study on the part of the reporting Judge that would surprise most. Making Court submissions public would, by the way, also have the side effect of spurring some more consistency on the part of the Commission..

9. There are other issues, but admittedly much harder to change, which have to do with how Judgments are written. I, for one, like it much better when I read Judgments such as this one or this one than when you read the ones we are most accustomed to.

To be sure, I am not saying that judicial review is deficient or that these two issues are very problematic; more than anything they are misleading to external observers and may hide the reality that there are many less problems than people usually believe.

On what anyone should do to have an informed opinion on this

10. My advice on this is threefold: (1) Don’t pay much attention to what I say 😉 ;(2) buy this book by Fernando Castillo and Eric Gippini that we will review here next week, (3) watch this space for Pablo’s new book explaining the evolution of EU competition law as a story of interaction between the Commission and the Courts.

When it comes to potential harm, horizontal mergers are almost up there with cartels. It is true that concentrations between competitors do not necessarily have anticompetitive effects. It is also undeniable that they can generate efficiencies. At the same time, any competition authority has every reason to be wary about horizontal mergers. It is certainly safer to devote resources to prevent undue market concentration than to, say, cases based on speculative theories where harm is not even obvious to establish.

If this is all well-known – and I would say, uncontroversial – it is somewhat counterintuitive that, according to the statistics on merger control, two or three years can easily pass before a transaction is blocked by the Commission. Why has the prohibition of horizontal mergers been seen as something exceptional by any standard?

There is probably not a single reason, but my impression is that inertia is the single most important one. Competition law provides, indeed, evidence of the validity of Newton’s first law of motion. The moment something is considered to be exceptional, authorities and courts become reluctant to address the issue, and this until the moment it never – or almost never – happens. Inertia might also explain, at least in part, why vertical agreements disappeared for a long while from the enforcement landscape.

I wonder whether things may slowly be changing in the realm of merger control. Perhaps, blocking a merger is no longer perceived to be exceptional. The incompatibility decision concerning the tie-up of Deutsche Borse and LSE – the other one! – may very well be the latest example in this regard. I do not have the means to know whether this particular decision is justified or not. This, in any event, is not the point of my argument, which is far more general.

What matters, in my view, is that the prohibition of horizontal concentrations start to be seen, once again, as a normal and integral aspect of a well-functioning competition law regime, in the same way that the occasional annulment of a Commission decision by the EU courts is no longer seen as a ‘blow’, a ‘fiasco’ or a challenge to the underlying policy choices, but as something that is a natural and inevitable consequence of effective judicial oversight.

Is it the change in the intellectual climate justified? Well, there are, at the very least, some powerful reasons to think carefully about some issues. I have been followed with great interest studies monitoring the post-merger evolution of markets. This book by John Kwoka is the sort of work that is worth pursuing. The ex post analysis of mobile mergers in Austria is another great example in this sense.

We have to be ready to accept, in the same vein, that authorities might have relied too much on remedies in certain instances. Perhaps a prohibition decision was more appropriate in some cases and should have been prioritised. It may also be the case that there is scope for improvement in relation to remedy design.

In the same vein, I am willing to take seriously claims by distinguished economists like Larry Summers, who has argued that corporate profits are high because markets are not competitive, or rather, have become less competitive due to increased market concentration.

My point, I guess, is that inertia and rigid thinking about what is the appropriate approach to deal with a matter can only lead to mistakes. The clearance of a merger should not be seen as the default scenario (in the same way that there should be no negative preconception vis-à-vis 4-to-3 transactions, which, according to some, is an emerging, and worrying, trend).