Chillin'Competition

As the year comes to an end, I am reminded that it has been a remarkable year also for the Journal of European Competition Law & Practice (JECLAP). I am proud to be a Joint General Editor of the Journal together with Gianni De Stefano.

And as I was thinking of JECLAP’s remarkable year, I realised that I had not shared on the blog some materials that best reflect what has been going on. So why not close the year with some materials.

We had an anniversary conference back in October, where we were surrounded by past authors and editors. It was the high-level event we were hoping to have.

First we had a session on cartels (with Eric Barbier de la Serre, Paula Ramada and Marisa Tierno Centella). The three presentations used can be found here.

We then had a session on abuses where I had the privilege to be joined by Article 102 TFEU greats, Giorgio Monti and Ekaterina Rousseva. Here you will find the presentation I used.

The session on procedural and institutional matters was led by three JECLAP editors and former editors (Mark English, Andriani Kalintiri and Paul Nihoul). This is Andriani’s PPT on presumptions.

The event was closed by a dialogue between Pascale Dechamps, Giulio Federico and Lars Wiethaus. It was short on presentations, but I still think of it as probably the most dynamic and insightful panel of 2019. Thanks all three!

And a few weeks ago, the proceedings of the 1st Ithaca Competition Summit came out as a Special Issue of the Journal (see here). The authors of the lead articles? Marc van der Woude, Max Kadar, Cani Fernandez, Eliana Garces, Jorge Padilla, Martin Cave, Katerina Maniadaki and Gönenç Gürkaynak. And it comes with a Foreword by Lefkothea Nteka. It rarely ever gets much better than this! By the way, my Legal Tests in EU Competition Law came out in this issue.

Enjoy the celebrations! We will Chill as usual in 2020.

Under certain circumstances, Article 102 TFEU can only be triggered if it can be shown that an input or platform is indispensable for competition on a neighbouring market. There is some controversy, however, about what these circumstances are. Sometimes (e.g. CBEM-Telemarketing, Bronner) indispensability is required; sometimes, it is not (e.g. Telefonica, TeliaSonera).

The question is so intriguing that I have written a paper on it (available on ssrn, see here). Many of you will be familiar with my take: the case law is clearer than most commentators tend to concede. As I have explained in past papers, it is all about the remedy.

Where intervention under Article 102 TFEU would demand the administration of a proactive remedy (either a structural remedy or a prescriptive obligation that necessitates monitoring), indispensability becomes an element of the legal test (and thus a precondition for intervention).

Why the remedy determines whether indispensability is an element of the legal test

Support for this position can be found in the case law. In fact, the EU courts were explicit about the point in Van den Bergh Foods. According to this ruling, indispensability would be an element of the legal test where intervention would require the firm to ‘transfer an asset or enter into agreements with persons with whom it has not chosen to contract’.

The case law makes a lot of sense. Proactive remedies are notoriously difficult to design, implement, and monitor – the experience with Microsoft I and Microsoft II is there for all to see. Therefore, it makes sense to limit to exceptional circumstances the instances in which competition law institutions (courts, authorities) are exposed to this particular stressor.

This is all the more sensible if one considers, in addition, that weighing the ex ante and ex post dimensions of competition is as difficult an exercise, if not more.

From an ex post perspective, any refusal to deal restricts competition. Why is a refusal to start dealing typically abusive only in exceptional circumstances, then? Because the ex ante dimension of competition – the counterfactual, again – also matters. In this regard, indispensability is a valuable proxy to avoid a difficult balancing exercise (even if one ignores the difficulties, mentioned above, around the design, implementation and monitoring of proactive remedies).

Implications for ‘grey area’ cases

Indispensability is a controversial issue in some pending ‘grey area’ cases. What is interesting about these is that they come across as being somewhere in between two lines of case law.

Slovak Telekom is one of these cases. Some of the practices at stake in the case were labelled as a refusal to supply. Does it follow that indispensability should be required? Not necessarily, the Commission argued. I concur with it (and the General Court, which has already examined the question).

Why? In the circumstances of Slovak Telekom, the infringement could be brought to an end without resorting to proactive remedies. The usual reactive intervention (a cease-and-desist order) was more than enough.

The issue arose again in Google Shopping. Unlike Slovak Telekom, the infringement could only be brought to an end by means of proactive remedies (in essence, a redesign of Google’s products). The difficulties that come with the design, implementation and monitoring of such measures have become apparent in the aftermath of Google Shopping (and as far as I can tell, these difficulties have not yet been solved; see here).

In Google Shopping, the Commission refers to the principle laid down in Van den Bergh Foods.

Why does it conclude that indispensability is not required? It is all about its interpretation of the principle.

Google Shopping suggests that, so long as the Commission does not formally mandate a proactive remedy, indispensability is not an element of the legal test. According to this view, if the Commission simply requires that the infringement be brought to an end, Van den Bergh Foods would not be relevant.

As I explain in the paper, I am not sure this is the most reasonable interpretation of Van den Bergh Foods, and this, for two main reasons.

First, the interpretation advanced in Google Shopping would give the Commission the discretion to decide when indispensability is an element of the legal test and when it is not.

In other words, this interpretation would turn an issue of law (the conditions to establish an infringement), subject to full judicial review, into one left to the discretion of the authority (and thus subject only to limited review).

Second, the EU courts have always placed substance above form. As a result, I fail to see how the relevance of indispensability can depend on what a decision formally requires – as opposed to what it entails in substance.

It remains to be seen whether the case law will prove resilient. The pressure to circumvent and/or abandon the consistent doctrine since Commercial Solvents is strong. I claim in the paper that, if the case law is to survive, the underlying principles would probably have to be spelled out more clearly.

Before I forget: I am delighted to clarify that, in accordance with the ASCOLA declaration of ethics, I have nothing to disclose.

I really look forward to your comments!

Thanks a million to all those of you who attended, sponsored, wanted to attend, or otherwise followed our conference last Monday. We felt it was interesting, chilled, decaffeinated ,and fun, and we were happy to see so many friends from all over the world. Vice-President Vestager did us the honor of announcing the revision of the market definition notice at the conference. General Court President van der Woude provided his insightful views on the past, present and future of EU judicial review. We are particularly grateful to the two of them for their support.

With this conference we always wanted to do something substantive but refreshing, and also something balanced, with no particular agenda. Thanks to you, to our sponsors and to the excellent speakers and friends who have accepted our invitations, this conference has become a significant event in only 5 editions.

This time we were “only” able to accomodate 450 people, while close to 500 remained in the waitlist (most of whom had registered on day 1!). We will do our best to fix that in the furure.  In case you couldn’t make it, here are the videos (which, however, do not capture the best thing about this conference: its atmosphere).

Here are the videos:

Introduction- The 10 Year Challenge (Alfonso Lamadrid)

Keynote by General Court President (Marc van der Woude)

Keynote by European Commission Executive Vice-President (Margrethe Vestager)

TED@Chillin’Competition “Our Data/ Our Future” (Jorge Padilla)

TED@Chillin’Competition “Hey Dude, for Pete’s Sake, you’re 30. It’s no longer cute to be so ?#@*&% disorganized. Grow up and focus on the essentials!” (Frank Montag)

InstantYoutubeHit@Chillin’Competition “A Rap on Competition” (Philip Marsden)

TED@Chillin’Competition “Sustainable Competition Policy”  (Maurits Dolmans)

10 Years of Competition Enforcement by the European Commission(featuring Nicolas Petit, Kim Dietzel, Kai-Uwe Khühn, Lars Kjolbye, Vanessa Turner and Lewis Crofts)

Articulating the Effects-Based Approach (featuring Svend Albaeck, Christian Ahlborn, Avantika Chowdhury, James Killick, Christian Riis-Madsen and Pablo Ibañez Colomo)

[P.S. Due to a technical problem we have no videos of two panels, the discussion with Renata Hese, John Sutton and Heike Schweitzer and the last panel on the burden of proof featuring Eric Barbier de la Serre, Kevin Coates, Leigh Hancher, Kristina Nordlander and Nigel Parr. But we’ll try do something about that soon]

The Chillin’Competition conference is about to start.

You can follow it live via this link.

The action will start at 9.30 (or 9.40, as people are still arriving…)

Enjoy!

The 5th Chillin’Competition conference is fast approaching!

We have received many requests for additional tickets, particularly from those of you on the waitlist. We can’t unfortunately accommodate any more attendees (Pablo is even concerned that we might not be able to accommodate those currently registered).

Here’s the good news: to make up for this, we have arranged for the conference to be accessibe via a Youtube live stream.

We will be posting a (functioning) link on the blog around 9.am next Monday that will enable you to follow all the action.

We have had to make a few tweaks to the program. Please see the final version below. Those watching from the office/home will at least be able to take a break at some point in the morning 😉

THE CHILLIN’COMPETITION CONFERENCE 2019

9.00-9.30: Registration

9.30-9.45: The 10-Year Challenge

Alfonso Lamadrid (Garrigues)

9.45-10.30: Keynote by GC President Marc van der Woude

10.30-11.30 TED@Chillin’Competition  

Philip Marsden (Bank of England, College of Europe, CRA)

Frank Montag (Freshfields)

Jorge Padilla (Compass Lexecon)

Maurits Dolmans (Cleary Gottlieb)

11.30-12.15: Keynote by Commissioner Margrethe Vestager

12.15-13.30: 10 Years of Enforcement by the European Commission 

Kim Dietzel (Herbert Smith Freehills)

Lars Kjolbye (Latham & Watkins)

Kai-Uwe Kühn (University of East Anglia and The Brattle Group)

Nicolas Petit (University of Liège)

Vanessa Turner

Chair: Lewis Crofts (MLex)

13.30-15: Lunch

15.00-16.00: A New Competition Law for a New Decade? Chillin’ with:

Renata Hesse (Sullivan & Cromwell)

Heike Schweitzer (Humboldt University Berlin, Special Adviser to Commissioner Vestager)

John Sutton (LSE)

16.00-17.15: Articulating the Effects-Based Approach

Christian Ahlborn (Linklaters)

Svend Albaek (European Commission)

Avantika Chowdhury (Oxera)

James Killick (White & Case)

Christian Riis-Madsen (GibsonDunn)

Chair: Pablo Ibáñez Colomo (LSE and College of Europe)

17.15-17.45: Coffee Break

17.45-19:  Meeting or Shifting- The Burden of Proof

Eric Barbier de la Serre (Jones Day)

Kevin Coates (Covington & Burling)

Leigh Hancher (Baker Botts)

Kristina Nordlander (Sidley)

Nigel Parr (Ashurst)

Chair: Alfonso Lamadrid (Garrigues)

19-21.00 Drinks