Chillin'Competition

It used to be commonplace for many to say that EU Law was lagging behind US antitrust law. Not sure that is still the case, assuming it ever was. But there is an important are where EU judges (even if perhaps not yet all EU competition authorities) are one step ahead:

The US Supreme Court heard yesterday oral arguments in the Ohio vs Amex case. Some say the case is fascinating. To me it is important, but it could not be more straightforward in the light of the current EU case law.

Indeed, the issues to be decided upon in that case are exactly the ones that EU Courts have perfectly understood and applied in cases like Cartes Bancaires, Mastercard, Streetmap, Bottin, etc. That is the view I tried to develop here:  Lessons from the Case Law for Competition Law Enforcement in Multi-Sided Markets (A Teaser)

The transcript of the hearing held yesterday is already available here  (that, on the other hand, shows that US Court litigation is more advanced logistically) [By the way, I can’t comment on the transcript yet because I am preparing for a hearing at the CJEU on Thursday (all those interested in tax-related State aid should attend, because there will be no transcript)]. I did however read many of the amicus curiae briefs a few weeks ago (all of which are also publicly available here) and they confirmed the point that this is all stuff we know too well and that judges in Europe have already understood all too well.

My paper discussing the implications of the Court of Justice’s judgment in Intel is now available for download on ssrn (click here). As usual, I would very much welcome your thoughts on it.

Has something changed? Maybe nothing, but a lot needs to change

Has something changed with Intel? Strictly speaking, nothing has changed. It really is a clarification. The point of law introduced in Intel was there for all to see before the ruling. It was just waiting for the occasion to come out.

The above does not mean, however, that everything people were saying before Intel is correct, or that courts and authorities can carry on as usual as if the judgment had never been delivered. It may be true that nothing has changed in theory, but a lot needs to change in practice.

Exclusive dealing and loyalty rebates continue to be ‘by object’ infringements – in the sense that they are prima facie prohibited irrespective of their effects – after Intel. A practice is only prohibited by object if it is capable of having restrictive effects. However, capability in relation to these practices is presumed. In this sense, it is true that nothing has changed.

On the other hand, the Court made it explicit in Intel that dominant firms can challenge the presumption of capability. This is true of all ‘by object’ abusive practices, not just exclusive dealing and loyalty rebates. We knew it was possible to rebut the presumption of capability under Article 101 TFEU (Murphy). We now know for sure that the same can be done under Article 102 TFEU.

An arrêt-cadre, not an arrêt-loi

I explain in my article that Intel is an arrêt-cadre, not an arrêt-loi. I mean by this that Intel lays down a framework, but does not develop it. I have come to the conclusion that this is a positive aspect of the judgment: trying to craft a whole system from the top-down may be counterproductive. It is better to wait for concrete issues to arise – this is after all the whole philosophy behind the EU Treaties.

What are the main questions that need to be clarified? I identify a few of these in the article:

What does capability mean?

The first key question relates to the meaning of capability – that is, what we mean when we say that a practice is capable of restricting competition.

Is capability the same as likelihood? Where does the threshold of capability lie?

In this regard, I argue in the paper that the threshold of capability is a fairly low one. This low threshold makes sense in relation to abuses ‘by object’, which are (and/or should be) those that according to economics and experience are liable to result in harm to competition with no offsetting benefits.

What authorities need to prove is that anticompetitive effects are plausible – not even likely. I also explain why it is important to distinguish between capability and likelihood.

The plain meaning of these words (‘capability’, ‘likelihood’) is – as highlighted by several speakers during our Chillin’ conference – already suggestive of different thresholds. I explain in the paper that mixing up the two concepts would blur the line between ‘by object’ and ‘by effect’ infringements. And such an outcome would be undesirable.

If the line between object and effect became blurred, either all ‘by object’ conduct would become subject to a case-by-case effects analysis (which would make no sense) or all ‘by effect’ conduct would become, for all practical purposes, prohibited by its very nature – thereby rendering the case-by-case assessment meaningless in practice.

What level of evidence do firms need to satisfy?

We know after Intel that dominant firms can rebut the presumption of capability. The judgment is silent, however, about the level of evidence that dominant firms need to meet in this regard. Do they need to prove the absence of capability beyond reasonable doubt? Do they need to provide ‘convincing evidence’ within the meaning of Tetra Laval?

This question, I sense, is likely to be very relevant in practice. DG Laitenberger’s speech on how to apply Intel going forward certainly focused on evidence, as did Alfonso’s post commenting on that speech.  A competition authority, instead of assessing the capability of a practice to restrict competition, may attempt to argue that the evidence adduced by the dominant firm is insufficient to rebut the presumption.

The more I think about it, the more I am persuaded that it would be enough if the evidence brought forward by the dominant firm has an ‘air of reality’, which is a relatively low level. Why? Alfonso and my colleague Andriani Kalintiri argued – separately and persuasively – in my discussions with them that this level is consistent with the presumption of innocence.

Does Intel require the application of the ‘as efficient competitor’ test?

I do not think so. The ‘as efficient competitor’ test has always been a proxy, and the Court refers to it as a proxy.

This said, if a dominant firm shows, in light of the ‘as efficient competitor’ test, that anticompetitive effects are implausible – in the sense that rivals would not have to sell below cost – a competition authority cannot avoid engaging with the question. In such circumstances, the authority may show, for instance, that there are other factors suggesting that the practice is capable of driving an equally efficient rival out of the market.

But even if Intel does not require the use of the ‘as efficient competitor’ test, the Guidance Paper does.  But we can leave the role of the Guidance as a pre-commitment device for another day. In fact, Alfonso has an interesting view that I challenge him to write up here. While we wait for his post, you can take a look at the paper and send your comments my way!

Our friend Peter Alexiadis, Partner at Gibson Dunn and Visiting Professor at King’s College London has come up with a wonderful initiative that is perhaps only matched by our Annual Chillin’ Competition Conference – in which, by the way, he has taken part twice.

Peter has put together a top programme for a two-day competition summit in the – no less than epic – island of Ithaka, in western Greece. Make sure you save the date! The academic bit will take place on 23 and 24 August. And because it’s the summer, and because it’s Greece, it should be very easy for you and the organisers to plan some exciting extracurricular activities around the event.

Chillin’ Competition will be proud to share information via the blog about the programme and about how to register for the summit. And please note that there will be a special deal for students. Stay tuned!

For the time being, we can anticipate that there will be four panels discussing (i) enforcement issues, (ii) behavioural matters, (iii) merger policy as well as (iv) issues at the interface of competition law and regulation. Speakers will be submitting their papers in advance to allow for in-depth discussion. These papers will be published later, and JECLAP will be the partner journal (more on this point in due course).

I am humbled to have been invited to speak alongside the following experts, in (why not?) reverse alphabetical order:

Marc van der Woude – General Court of the EU

Tommaso Valletti – DG Competition, European Commission

Nikolaos Peristerakis – Linklaters, Brussels

Jorge Padilla – Compass Lexecon, Madrid

Renato Nazzini – King’s College London

Katerina Maniadaki – OFCOM, London

Karim Lesina – AT&T, Brussels

William Kovacic – George Washington University, DC and King’s College London

Assimakis Komninos – White & Case, Brussels and University College London

Massimiliano Kadar – DG Competition, European Commission

Alison Jones – King’s College London

Gonenc Gurkaynak – ELIG, Istanbul

Cani Fernández – Cuatrecasas, Madrid

Spyros Droukopoulos – OXERA, Brussels

Martin Cave – London School of Economics

Peter Alexiadis – Gibson Dunn, Brussels and King’s College London

We will come back with more information (including information about other speakers) soon!

We are delighted to advertise a couple of forthcoming events taking place next week before it’s too late.

Lunch talk with the Hon. Makam Delrahim in Brussels (21 February): Our friends from the GCLC have organised a lunch talk, to take place on Wednesday of next week. Makan Delrahim, the current US Assistant Attorney General for the Antitrust Division will be meeting the Brussels community. It certainly sounds like a unique chance! It will all happen at Residence Palace, starting at noon. Information on how to register can be found here.

By the way: I have checked the Eurostar timetable and, if you rush, you should be able to make it for the event organised by Ioannis Lianos on search and net neutrality in the EU and the US. I will be one of the speakers. Conveniently, the event will take place at UCL, which is quite close to St Pancras Station 🙂 . More info here.

Workshop on evidence and judicial review in Madrid (23 February): In the context of the competition law course organised in Madrid by Alfonso and Luis Ortiz Blanco, Fernando Castillo and Eric Gippini (two good friends of the blog) will coordinate an exciting workshop on Evidence and Judicial Review in EU Competition Law. The event will take place at IEB, right behind the gorgeous building you see on the picture above – the one with the blue skies, in case you are wondering which.

You can find all necessary information on how to register for this event in this document.

Eric and Fernando have managed to put together an exciting programme with top speakers, which I copy below (as a bonus, both Alfonso and myself will attending the seminar):

12:30 – 14:30: Evidence in Competition Law

Chair:

Fernando Castillo de la Torre (Legal Service, European Commission)

Speakers:

Daniel Sarmiento (Uría Menéndez and Universidad Complutense)

Andriani Kalintiri (LSE)

Enrique Andreu (Compass Lexecon)

Eric Gippini Fournier (Legal Service, European Commission)

16:00 – 18:00: Judicial review of competition law decisions

Chair:

Eric Gippini Fournier (Legal Service, European Commission)

Speakers:

Maria Eugénia Martins de Nazaré Ribeiro (former Judge at the General Court of the EU)

Santiago Soldevila (Audiencia Nacional, former Judge at the General Court of the EU)

Fernando Castillo de la Torre (Legal Service, European Commission)

Francisco Marcos (Instituto de Empresa)

For the second year in a row, my co-blogger Pablo has been nominated for GCR’s Academic Excellence Award.

If you enjoy what he does here (well, if you occasionaly read it), then please consider voting for him.

You can CAST YOUR VOTE HERE

You may have noticed the blog has been less active in the past few weeks. If you had not realized but somehow suddenly felt more lucid, better informed and like you made more out of your time,  then that may explain it.

Our inactivity on the blog was due to a peak period at work (our respective peak periods have synchronized this time), and a few other things including:

-A firm presentation at the College of Europe titled “What you always wanted to know about life in private practice and were too afraid to ask?”. The slides (not really much content but some pretty good images, including the one above) are available here: What you wanted to know about life in private practice but… (2018)  😉 [Btw, the context was a recruiting exercise which, of course, is also open to other candidates. If interested, shoot me a line]

-Some General Court hearings in Luxembourg last week in relation to the cases we discussed here. The hearings featured the finest discussions on selectivity in State aid that I have heard so far (not at all thanks to me, but to the judges, to our opponents at the Legal Service and to my colleague José Luis Buendía). It was a good reminder of the perks of this job and of why litigating is the best part of it. It also reinforced my view that hearings should enjoy greater publicity (perhaps in the form of transcripts); my notes of the hearing are more useful than most articles on these issues. We would all learn more, many would look at the Court with greater sympathy (Judgments in their current format do not always reveal the underlying legal discussion and the judges’ work, let alone in a reader-friendly way), and lawyers could be valued by how they do their work rather by the firm at where they do it (for more on that, see and old post here). The best imperfect substitute we now have is MLEX, so you can read their pieces on those hearings here and here (if you are subscribed, that is).

-On Friday I also participated in a seminar on the main developments of 2017 in the competition sphere, where we discussed mainly Coty, Intel and Google Shopping. The programme is available here: Seminar February 2 2018. I discussed some legal (not factual) aspects of the Google Shopping case (essentially about the applicable legal standard, the precedent it sets for vertical integration in multi-sided markets and about the notion of effects/foreclosure used in the decision) but did not prepare a presentation (rather Googled live what I wanted to show the audience, including these excellent graphs on the difference between correlation and causation). We may perhaps touch on the other elements sometime soon.

-On Friday Pablo could not join us as he was discussing the same cases… but in Florence. His lecture was part of a training programme for Judges run at the European University Institute. See the programme here.

-Some days ago we also responded to a few questions about legal blogging and about how it fits with legal practice; in the unlikely event that may be of interest, it’s available on the “State of Competition” blog, here.

What we have not done:

-We have not yet commented on the Qualcomm decision (we have been advised to wait and read beyond the press release prior to commenting), nor about another important State aid ruling having to do precisely with selectivity.

-We have not yet discussed Pablo’s forthcoming intervention (21 February) at “Digital Platforms and the Widening EU/US Competition Law and Regulation Gap” in London. Chaired by Ioannis Lianos, it will also feature Brice Allibert (DG Comp), Oliver Bethel (Google), Cristina Caffarra (CRA) , Damien Geradin (Euclid), Bill Kovacic (see his interview with us here), Ioannis Kokkoris (Queen Mary University), Florence Thepot (University of Glasgow) and the inimitable Superwuster (aka Tim Wu) (Columbia). If you feel like signing up, take a look at the programme here:

-We forgot to tell you here about some events, including about the upcoming W@Competition’s 2^nd annual conference in Brussels on 1 March. The title “Is Disruptive Competition Disrupting Competition Enforcement”. The all-female list of nominees speakers includes phenomenal in-house lawyers, private practitioners, economists and enforcers. I will not be announcing any winners this year, so this time the whole event will be interesting. You can check it out and register here. Instead of meme-mugs for attendees, we suggest this gift.