Chillin'Competition

The news is out there: Alfonso has been promoted to equity partner, and he will be able to introduce himself as one on 1 January 2019.

I could say that the promotion is deserved several times over (which it is). But it would not really capture how I feel about it. That needs a few more words.

I met Alfonso when he was a 23-year old LLM student. In my mind he was a partner already back then.

Let me be clear: it is not that Alfonso ‘had the potential’ in his early 20s. All the qualities of the best law firm partners were already there, in full bloom, ready to be put to the best use. He could very well have acted as a partner at the time (as I suspect he might occasionally have done and know for sure he has in the past few years).

What I admire in top practising lawyers is that they have to be good across the board – unlike academics, who, so long as they are solid researchers, can afford to be walking failures in pretty much every other aspect.

Alfonso has acquired such fabulous reputation in record time because he is not just skilled in many disparate areas (technical, analytical, managerial and so on); he excels at every single one of them, which is quite unique.

And I mean this in the best possible sense. For instance, it is said that practising lawyers need to be ‘good with people’, which is often taken as code for ‘good at networking’. Alfonso is much more than that. He is good with people in the sense that he is generous, genuinely cares about others, and people like him a lot (in part, but not only, because he is great fun to have around).

I am sure many of our younger readers look up to Alfonso. They should. In fact, I cannot think of a better role model.

I have no doubt you will find the way to join me in congratulating him for this milestone!

Autumn is here with us (as the pic above attests), and conference season, which is never over, appears to be picking up speed as days get shorter.

Many would never have told, but I took the picture last Saturday in central Vilnius. I was there – my first time ever in Lithuania – for a lecture at the competition authority. It was really enjoyable. I am grateful to Gintarė Surblytė-Namavičienė and Šarūnas Keserauskas for being such amazing hosts. I already look forward to coming back.

UCL | White & Case Brussels: Autumn Competition Law Conference (7 November)

On 7 November I will be in Brussels (a place that I have visited before) for the first Autumn Conference jointly organised by University College London and White & Case Brussels. The programme of this great initiative, which features yours truly on innovation (alongside much more prestigious specialists), is available here.

IMPORTANT: Makis Komninos and Ioannis Lianos, joint organisers of the conference, are kind enough to allow up to 15 of Chillin’Competition readers for free. When booking a ticket via this website, use this promotional code: lse-ibanez-colomo. Thank again, Ioannis and Makis!

TILEC 15th Anniversary Conference: Legal and Economic Challenges in Competition Policy (9 November)

A couple of days later, I will have the honour to be one of the speakers at the conference celebrating the 15 years of the Tilburg Law and Economics Center. I have always admired TILEC and have followed closely its many achievements over the years.

If you are interested in the programme and/or in signing up for it (I believe there are still a few spots available), please see the programme here.

All tickets released for the Chillin’Competition 2018 Conference were gone in 4 minutes. Thanks so much for the interest! We hope you won’t be disappointed; the food at least should be good 😉

There are already another 250 people on the waitlist, and we also need to reserve seats for our sponsors, so unfortunately we need to close registrations now.

But there is still one way for you to make it: you can always persuade one of our sponsors (soon to be announced) to register you with their reserved seats…

You can register via this link.

Registrations will open up tomorrow morning at 10.am via a link that will be made available on the blog.

This is the final programe (minus the surprises).

THE CHILLIN’COMPETITION CONFERENCE 2018

9.00-9.30- Registration

9.30-9.45- Opening remarks featuring some substance and a few bad jokes (but that’s when we’ll be handing out the special conference goodies, so better be there!)

Alfonso Lamadrid (Garrigues and Chillin’Competition)

9.45- Panel 1: Competition law in its economic and political context

Isabelle de Silva (Autorité de la Concurrence)
John Fingleton (Fingleton Associates)
Luis Garicano (IE Business School)
Philip Marsden (CMA and College of Europe)
Tommaso Valletti (European Commission)

Moderator: Lewis Crofts (MLex)

11.15- KEYNOTE SPEECH by Commissioner Margrethe Vestager

11.45-12.15: Coffee Break

12.15- Panel 2: And so what? Procedural violations in EU Competition Law

Jérémie Jourdan (White & Case)
Stephen Kinsella (Sidley)
Jenny Leahy (Freshfields)
Jürgen Schindler (Allen & Overy)
Wouter Wils (European Commission and King’s College London)

Moderator: Kyriakos Fountoukakos (Herbert Smith)

13.30- Syrian Lunch by “We Exist”

14.45- Panel 3- Market Power Revisited

Avantika Chowdhury (Oxera)
Kirsten Edwards-Warren (Compass Lexecon)
Eliana Garcés (The Brattle Group)
Bojana Ignjatovic (RBB Economics)
Oliver Latham (CRA)

Moderator: Alexandre de Streel (Université de Namur)

16-16.30- Coffee Break

16.30-17.45- Ted@Chillin’Competition (“Concepts”)

Pablo Ibáñez (LSE and Chillin’Competition)
Andriani Kalintri (City Law School)
Catriona Hatton (Baker Botts)
Robert O’Donoghue QC (Brick Court Chambers)
Denis Waelbroeck (Ashurst and Université Libre de Bruxelles)
Johan Ysewyn (Covington)

17.45-18- Break

18-19.15- Ted@Chillin’Competition (“Concepts”) cont’d

Christian Ahlborn (Linklaters)
Peter Alexiadis (Gibson Dunn)
Fiona Carlin (Baker McKenzie)
Sarah Long (EUCLID Law)
Rich Pepper (Cleary Gottlieb)
Randy Picker (University of Chicago)

19.15-? Drinks

Not even two months have passed, but it already feels like a different (let’s call it golden) age.

On 23 and 24 August, around 90 pioneers, led by Peter Alexiadis, gathered in Vathy for the 1^st Ithaca Competition Summit. I have wonderful memories of those days (and I think I speak on behalf of the rest of the attendees). The place is really stunning – I am not saying this to be nice to Peter, who, I think, would rather not have the word spread – and the academic side of things was, as expected, of the highest level.

Here are some of the materials used in the conference – remember they will come out in a special issue of the Journal of European Competition Law & Practice.

Session 1: Enforcement & Review in Competition Matters

• Marc van der Woude (General Court, Luxembourg) — Assessments of Complex Economic Issues by a Review Court
• Renato Nazzini (King’s College London) — The Arbitration of Competition Law Disputes
• William Kovacic (King’s College London/George Washington University, DC) — US Antitrust Policy under the Trump Administration

Session 2: Behavioural Practices – Evolving Standards

• Assimakis Komninos (White & Case, Brussels/University College London) — What Can Private Enforcement teach Public Enforcement in Article 102 Cases?
• Yours truly (I will say a word about my presentation on the blog in the coming days) — Finding the Appropriate Legal Standard by which to Assess Competition Law Violations
• Massimiliano Kadar (European Commission/King’s College London) – Applying Article 102 to rebates in the Wake of the Intel Judgment: the Qualcomm case
• Cani Fernández (Cuatrecasas, Madrid) – The Use of Presumptions and Burdens of Proof in Competition Law Cases: The Intel Saga

Session 3: Merger Policy – Current and Emerging Trends

• Eliana Garcés (The Brattle Group, DC) – Conglomerate and Vertical Mergers: Current Thinking
• Jorge Padilla (CompassLexecon, Madrid) – Mergers and Innovation
• Nikolaos Peristerakis (Linklaters, Brussels) – The Treatment of Efficiencies Defences under EU Merger Control: A Practitioner’s View

Session 4: Regulatory Policy Meets Antitrust Paradigms

• Martin Cave OBE (London School of Economics) – Assessing Platform Mergers in Practice
• Peter Alexiadis (Gibson Dunn, Brussels/King’s College London) – Understanding How Regulatory Standards Influence Competition Law Standards in the Assessment of Abusive Conduct
• Spyros Droukopoulos (Oxera, Brussels) – Most Favoured Nation Clauses: Competition Enforcement in the Face of Regulatory Intervention

The European Commission had the great idea of inviting contributions to its conference on ‘Shaping competition policy in the era of digitisation’. I seized the opportunity and submitted mine.

If you are interested in them, the piece is available on ssrn (see here). As usual, I would welcome your comments.

What is the essence of my contribution? Well, I made four major points:

EU competition law is adequately equipped to deal with the challenges raised by digital platforms: The concerns identified by the Commission (leveraging, lock-in and so on) are not new, and are not exclusive to digital platforms. Past practice shows that the EU competition law system can deal effectively with them.

More crucially, I explain in the paper that there is no solid evidence suggesting that there is something specific about digital platforms that justifies a sectoral approach, or a carve-out. Similarly, there seems to be no reason to reinterpret existing competition law concepts. I fully understand the anxiety of some stakeholders, but it would not be a good idea to formulate policy on the basis of anxiety.

Some enforcement approaches pose significant risks, and more precisely:

• The abuse of the ‘by object’ approach: The ‘by object’ approach to enforcement should only be relied upon where justified (both under Articles 101 and 102 TFEU). Competition authorities should avoid using this approach for conduct with ambivalent effects on competition.
• The assessment of effects should be meaningful: one of my main concerns about enforcement in digital markets is that the assessment of effects becomes a formality, as opposed to a meaningful inquiry into the impact of a practice on firms’ ability and incentive to compete. As the case law shows, not every competitive disadvantage amounts to an anticompetitive effect, and not every practice that makes rivals’ life more difficult is necessarily in breach of competition rules.
• Ad hoc decision-making should be avoided: this is a point that could not be emphasised enough. We all know that the outcome of cases is often context-dependent. However, it should always be possible to infer principles from individual decisions, and to understand how these decisions fit in the system as a whole (how they relate to the precedents and with the horizontal principles of the case law). Ad hoc decisions that are relevant only in the specific circumstances of the case would make intervention impossible to anticipate. I do not believe this is an outcome anyone desires.

In a similar vein, I explain there is no basis for some popular ideas or principles:

• Vertical integration should not be seen, in  and of itself, with suspicion: It has become relatively commonplace to hear that vertical integration is a problem in itself – some go as far as to advocate the break-up of digital platforms. There is no basis for this idea, which contradicts the experience acquired over decades (as captured, for instance, in the Commission’s Non-Horizontal Merger Guidelines).
• Common carrier obligations should be seen as remedies, not principles: This idea goes back to the point I made in my post on the Amazon probe. Discrimination (such as favouring an affiliate) is not, and has never been, a problem in itself (there is no basis in the case law for this idea). What is more, it has sometimes allowed for the emergence of new products and benefitted citizens in the process. The fact that a platform operator treats more favourably its own service is not as such evidence that the competitive process is not working, or that intervention is necessary. Again, the Commission’s Non-Horizontal Merger Guidelines capture the essence of this idea well.
• There is no basis for favouring open vs closed systems, or vice versa (or to think that moving in one direction or the other is invariably good).
• Innovation considerations should not replace robust effects analysis: In its third panel of the conference, the Commission intends to discuss questions such as ‘copycat’ products and their impact on innovation.
  • My main concern (explained at length in this article) is that innovation considerations may be used as a substitute for a robust assessment of the impact of the practice on competition (what I call the direct introduction of innovation considerations). Such a move would not only be at odds with the case law, but would lack a basis in mainstream economics (to be clear: the analysis in cases like Dow/DuPont is entirely uncontroversial from my perspective, as I explained here).
  • My secondary concern relates to the consistency of EU competition policy. In other areas, the Commission has taken action to ensure that copycat products (which is another name for generic drugs) are able to enter the market quickly and effectively. Action relating to ‘copycats’ in digital markets should be consistent with this policy (it would not be obvious to see why ‘copycats’ are encouraged as pro-competitive in one sector and discouraged as anticompetitive in another sector).

Finally, I claim that action in digital makets should make use of the whole range of legal tests available:

It would be inappropriate to apply a case-by-case effects analysis to every practice. The case law provides filters and proxies, and it makes sense to use them. For instance, some practices are deemed prima facie lawful. Other practices are subject to what I call an ‘enhanced effects analysis’, under which action requires evidence of, at least, indispensability (think of Commercial Solvents or IMS Health).

These ideas are captured in the figure below:

When is it appropriate to consider that a practice is prima facie lawful? When it is objectively necessary to attain a pro-competitive aim and as such incapable of restricting competition. You will all remember these are the reasons why franchising agreements, for instance, fall outside the scope of Article 101(1) TFEU altogether.

Some practices in digital markets may be new, or not obviously comparable to those already deemed prima facie lawful. As a result, it is necessary to ensure that firms are able to advance arguments showing that, because the practice is objectively necessary, it is not capable of restricting competition. Since Intel, there is no doubt that the possibility exists under Article 102 TFEU – we have known since Murphy that the possibility existed under Article 101(1) TFEU.

When is it appropriate to apply the enhanced effects analysis? When remedial action in a case would require a firm to alter the design of its product and/or change its business model (as in Commercial Solvents or CBEM-Telemarketing, both of which required indispensability).