Chillin'Competition

-It has been reported this week that the European Commission is getting ready to take a step that could have profound implications on the internet as we know it. We did not know whether to comment on this development or not given my conflict of interest, but the Commission’s view would appear to put at risk what this blog stands for as well as part of my work during the past two years. Yes, you guessed right, legal memes are allegedly at risk; for more, see here.

-Yesterday was a historically surreal day. But contrary to what has been reported, Trump and Kim Jong-Un had interacted before (on Twitter, regarding antitrust, and Commissioner Vestager was involved). Click here to see the screenshots (from slide 3 onwards).

-In what many see as a blow to Trump, the AT&T/Time Warner merger was unconditionally cleared yesterday after the DOJ’s suit was dismissed. The full text of Judge Leon’s Opinion is available here. Its drafting seems to be quite specific and not a challenge to the growing concern about vertical mergers. The Judge himself has stated that “the temptation by some to view this decision as being something more than a resolution of this specific case should be resisted by one and all”. This development will trigger many comments, but the most succinct, persuasive and full blown attack against vertical mergers we have read so far comes from 30 Rock and is available here  (make sure to click) 😉

-Moving on to more serious news, the Luxemburgish competition authority has exempted an algorithm price fixing mechanism for taxis. The Decision available here (in French) notes that the joint use of a multi-sided platform that fixes prices constitutes a horizontal agreement, but concludes that the agreement shall be exempted given the efficiencies generated by the agreement (which include lower prices for consumers thanks to the algorithm) and the absence of any viable alternative to attain them. Would the Commission and other NCAs agree with this view? We don’t know because the case concerns only Luxemburgish law (otherwise an exemption would not have been possible pursuant to the Tele 2 Polska case law). According to the decision, the taxi sector is subject to national regulation and does not impact trade between Member States (which arguably doesn’t fit squarely with what the CJEU held in paras. 65-70 of Eventech). Since Member States can’t exempt agreements under EU Law, they may be led to adopt this sort of jurisdictional interpretations, which may in turn not be ideal for legal certainty and for the internal market.

Wouldn’t it be nice if the European Commission decided to adopt 101(3) decisions too? Quizz question: what was the last 101(3) exemption granted by the Commission?  It’s already been 7 years (!) since we wrote about The Slow Death of Article 101(3), and it’s not that the landscape has improved.