Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Archive for April 2022

UPDATED PROGRAMME: Conference at the London School of Economics (12th May, Old Theatre)

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We really look forward to seeing many of you at the conference organised by the LSE Law School in two weeks’ time (12th May, LSE’s Old Theatre). Remember that you can register for free here and that you can reach my colleagues with any inquiries via law.events@lse.ac.uk.

You will find an updated version of the programme below. The key novelty you will spot: John Newman (Deputy Director of the Bureau of Competition, Federal Trade Commission; on leave from the University of Miami School of Law) will be sharing some thoughts (in his personal capacity) during the lunch break at LSE’s Shaw Library. We are excited that the audience will get a flavour of the US experience and perspective.

See you very soon for what promises to be a great in-person (finally!) event.

Programme

9:15-9:30 | Welcome

David Kershaw (Dean and Professor, LSE Law School).

9:30-11:00 | Looking ahead: policy matters

Andrea Coscelli (Chief Executive, Competition and Markets Authority);

Cani Fernández (President, Comisión Nacional de los Mercados y la Competencia); and

Andreas Mundt (President, Bundeskartellamt).

In conversation with Thorsten Käseberg (Visiting Professor, LSE Law School and Head of Competition Policy, German Ministry for Economic Affairs and Climate Action).

11:00-11:15 | Break

11:15-12:45 | Looking ahead: substantive matters

Fernando Castillo (Principal Legal Adviser, European Commission);

Heike Schweitzer (Professor, Humboldt University of Berlin); and

Fabienne Siredey-Garnier (Vice-President, Autorité de la concurrence).

In conversation with Pablo Ibáñez Colomo (Professor, LSE Law School).

12:45-14:30 | Lunch (LSE Shaw Library)

With John Newman (Deputy Director of the Bureau of Competition, Federal Trade Commission).

14:30-15.45 | Coordination and enforcement in the new landscape

Sarah Cardell (General Counsel, Competition and Market Authority);

Niamh Dunne (Associate Professor, LSE Law School); and

Damien Gerard (Prosecutor General, Belgian Competition Authority).

15:45-16:00 | Break

16:00-17:15 | Lessons from other regulatory regimes

Claudia Berg (General Counsel, Information Commissioner’s Office);

Martin Cave (Visiting Professor, LSE Law School and Chair, Ofgem); and

Lindsey Fussell (Group Director Networks & Communications, Ofcom).

17:15-18:30 | Drinks (LSE Shaw Library)

Written by Pablo Ibanez Colomo

28 April 2022 at 12:53 pm

Posted in Uncategorized

REGISTRATION OPEN: Conference at the London School of Economics (12th May, Old Theatre)

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LSE Law School is proud to announce its 12th May conference, which will bring together top officials and academics to discuss the future of competition law and regulation. You can check the programme, with all confirmed speakers, below.

Registration (for free) is open here. The event will take place in the venerable Old Theatre (at the heart of the LSE campus) and we will continue the conversation over lunch and drinks at the no less venerable Shaw Library. If you have any questions about it, please get in touch. You can also reach my colleagues via law.events@lse.ac.uk.

Programme

9:15-9:30 | Welcome

David Kershaw (Dean and Professor, LSE Law School).

9:30-11:15 | Looking ahead: policy matters

Andrea Coscelli (Chief Executive, Competition and Markets Authority);

Cani Fernández (President, Comisión Nacional de los Mercados y la Competencia); and

Andreas Mundt (President, Bundeskartellamt).

In conversation with Thorsten Käseberg (Visiting Professor, LSE Law School and Head of Competition Policy, German Ministry for Economic Affairs and Climate Action).

11:15-11:30 | Break

11:30-13:00 | Looking ahead: substantive matters

Fernando Castillo (Principal Legal Adviser, European Commission);

Heike Schweitzer (Professor, Humboldt University of Berlin); and

Fabienne Siredey-Garnier (Vice-President, Autorité de la concurrence).

In conversation with Pablo Ibáñez Colomo (Professor, LSE Law School).

13:00-14:15 | Lunch (LSE Shaw Library)

14:15-15.30 | Coordination and enforcement in the new landscape

Sarah Cardell (General Counsel, Competition and Market Authority);

Niamh Dunne (Associate Professor, LSE Law School); and

Damien Gerard (Prosecutor General, Belgian Competition Authority).

15:30-15.45 | Break

15:45-17:00 | Lessons from other regulatory regimes

Claudia Berg (General Counsel, Information Commissioner’s Office);

Martin Cave (Visiting Professor, LSE Law School and Chair, Ofgem); and

Lindsey Fussell (Group Director Networks & Communications, Ofcom).

17:00-18:30 | Drinks (LSE Shaw Library)

Written by Pablo Ibanez Colomo

22 April 2022 at 12:35 pm

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Are there any restraints on vertical block exemptions (by Stephen Kinsella)

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[We are happy to publish a guest post from Stephen Kinsella touching on the VBER reform. We hope it will trigger a discussion; as always, we would be happy to hear different views]

Some time next month the Commission is due to adopt a revised version of the regulation that governs how the competition rules are applied to online sales in Europe. The Vertical Block Exemption Regulation (VBER) is set to run until 2034 and will have a major impact on the relationship between brand owners, retailers and consumers. It also risks causing harm to the European economy and creating considerable legal uncertainty because of the way in which the Commission has approached the renewal process.

The Commission does not have unlimited discretion when it passes laws in this area. It is bound by a Council Regulation dating from 1965 that only allows it to create a safe harbour for “vertical agreements” (agreements between parties at different levels in the supply chain) where it is clear that they are no more restrictive than necessary and will benefit consumers. In order to make sure that is the case, the Commission is supposed to carry out a rigorous assessment of the impact of its proposal on competition. Unfortunately in this instance, it failed to undertake that analysis. As a result the regulation it proposes goes beyond the powers it was granted back in 1965, and even beyond Treaty rules on competition, meaning its new regulation will be open to legal challenge. A regulation that is supposed to create legal certainty will instead generate considerable uncertainty.

A concrete example is the proposal relating to dual pricing. Under the existing regulation, when a brand supplies its goods to a retailer who then resells them both online and in its high street store, the brand owner has to offer a single wholesale price to the retailer. If the brand owner wants to encourage the retailer to invest in point of sale efforts, it can offer financial assistance. But it cannot “penalise” the retailer for reselling any of its stock online.

Under the new proposals, a brand owner will be able to say: here is a consignment of goods but for those you eventually sell in the store the wholesale price is X but for those you ultimately sell online the price will be Y. Meaning that it will only be apparent after a good has been sold to a consumer what will be the wholesale price that is retrospectively applied to that item.

So far so simple, one might say. But so many questions arise. Is the retailer to keep distinct consignments of stock, separating those to be sold online from those sold in-store? What if a customer comes into the store to view the goods but then places an order via the retailer’s website – is that an online or offline purchase? Conversely, if the customer orders online but for a click-and-collect purchase, how does one categorise that sale?

These issues and others could have been tested in a rigorous market study. After all, the process of renewing the regulation was launched over three years ago. But these dual pricing provisions (and a number of other changes) that were only proposed last summer, were never subjected to proper evaluation of their effects on the European economy, and there has been no attempt to explain what their impact will be. In particular, there has been no serious evaluation of what the impact of dual pricing could be when combined with other proposals, such as allowing brands to ban their retailers from selling via online marketplaces and allowing them to discriminate against online sales channels in general. Would not one outcome be that the majority of online sales are effectively reserved to suppliers via their own website? And is it not inevitable that measures that deter or make online sales more expensive are bound to lead to higher prices, undermining the Commission’s focus on controlling inflation?

The Commission itself recognises that the powers it was granted in 1965 are limited. A recital in the draft states that the benefit of the exemption “should be limited to vertical agreements for which it can be assumed with sufficient certainty” (my emphasis) that they satisfy the conditions for exemption laid down by the EU Treaty. Another provision goes on to say that the regulation “should not exempt vertical agreements containing restrictions which are likely to restrict competition and harm consumers or which are not indispensable to the attainment of the efficiency-enhancing effects”. Put simply, the Commission has the obligation to show that its proposals meet these tests.

The criticism of the approach adopted for this renewal, and the inexplicable failure to conduct a genuine impact assessment, is growing. BEUC, the pan European consumer body, expressed its concerns last year: “the Commission must be wary of unsubstantiated efficiencies. Any relaxation of the rules applicable to vertical agreements is likely to impact consumers.” Even national competition authorities, who take the vast majority of antitrust decisions regarding vertical / distribution agreements, do not seem convinced by the proposed relaxation regarding dual pricing. A senior French competition official recently described the proposal as “neither proportionate nor necessary”.

What can be done this late in the day? Many organisations who have contributed during the renewal process (and seen much of their evidence ignored) are weary of it, and it could be that the Commission is counting on that fatigue. But it may be that the only pragmatic solution would be to prolong the existing regulation for one year, to allow time for the objective empirical evaluation of effects that has been lacking to date. Otherwise we will find ourselves with a seriously defective regulation set to govern the digital space for the next 12 years, which is far too long when you consider how often the Commission talks about “future proofing” its legislation. By way of comparison, the parallel regulation that the UK intends to adopt will have a lifespan of 6 years.

If the Commission does not even now rethink its approach, the new regulation will certainly be open to legal challenge. That could arise in a number of ways, but will most likely come out of a dispute in a national court, where the question of validity will need to be referred to the European Court for an answer. In addition the national competition enforcers of the Member States will be asked to use their own powers to withdraw the benefit of the VBER because it will be permitting anticompetitive practices on a scale that threatens consumer interests. In short, we will be faced with an entirely avoidable mess.

Written by Alfonso Lamadrid

21 April 2022 at 12:39 pm

Posted in Uncategorized

The leaked (almost final) DMA text

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Over the past few months, the European Institutions have been working on a major legislative initiative that seeks to leverage DG COMP’s experience to create a new regulatory instrument, close an enforcement gap and address some of the greatest distortions to competition and the internal market.

We are talking about a bold, but well-thought out and balanced initiative that pursues true public interest goals. Some aspects still need to be ironed out, but the proposal is sound. Its success, however, will be determined by its practical implementation in the face of political pressures, potential legal challenges and EU relationships with third countries. This is a legislative initiative that touches on issues that we have discussed through the years, and we will be following it closely.

We are, of course, talking about the European Commission’s Proposal for a Regulation on Foreign Subsidies distorting the internal market, which has arguably not received the attention it deserves.

The opposite is true of the Digital Markets Act, which has attracted lots of attention from the press, politicians, lobbysts and commentators. Last Thursday, an almost-final version of the final DMA text was leaked. This text is now circulating widely in Brussels circles. We figured you would be interested. It is available here:

Written by areeader

20 April 2022 at 12:19 pm

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SAVE THE DATE: 12th May | Conference at the London School of Economics

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On 12th May, the London School of Economics will be hosting a major conference that will look into the future of competition law and regulation. The event is the product of joint work with Thorsten Käseberg, who moonlights as a Visiting Professor at LSE on top of his duties at the German Ministry for Economic Affairs and Climate Action.

The conference will address upcoming challenges from a legal, institutional and policy perspective. In addition, we will explore the lessons that can be drawn from sectoral regimes, in particular utility regulation and data protection.

We hope to see many of you in London in May. We will be providing all information on how to register (for free) and how to attend already next week: make sure you keep an eye on this blog and LSE Law School’s social media profiles (including Twitter and LinkedIn). In the meantime, do not hesitate to get in touch.

If you want a taster of the conference, here is the lineup of confirmed speakers:

On policy matters:

  • Andrea Coscelli (Chief Executive, Competition and Markets Authority);
  • Cani Fernández (President, Comisión Nacional de los Mercados y la Competencia); and
  • Andreas Mundt (President, Bundeskartellamt).

On legal issues:

  • Fernando Castillo (Principal Legal Adviser, European Commission);
  • Heike Schweitzer (Professor of Law, Humboldt University of Berlin); and
  • Fabienne Siredey-Garnier (Vice-President, Autorité de la concurrence).

On institutional and coordination matters:

  • Sarah Cardell (General Counsel, Competition and Market Authority);
  • Niamh Dunne (Associate Professor, London School of Economics); and
  • Damien Gerard (Prosecutor General, Belgian Competition Authority).

On lessons from other regulatory regimes:

  • Claudia Berg (General Counsel, Information Commissioner’s Office);
  • Martin Cave (Chair, Ofgem); and
  • Lindsey Fussell (Board Member, Ofcom).

Enjoy the break!

Written by Pablo Ibanez Colomo

11 April 2022 at 4:59 pm

Posted in Uncategorized

OUT NOW: Special Issue on Google Shopping in JECLAP

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On behalf of JECLAP‘s editorial team, I am proud to announce the publication of the Special Issue dedicated to the General Court’s ruling in Google Shopping.

You can be access it here. Choosing the pieces was not an easy task (we received over 30 submissions in no time), but we could not be more delighted about the end-product.

The contributions are invariably thoughtful and approach the judgment from different angles (some more practical, other more theory-minded). As an editorial team, we are particularly happy that this Special Issue provides a platform to new voices in academia and the world of practice (we are convinced they will become household names in the near future).

If you are curious, below is a glimpse of what the Special Issue offers (I will be discussing some pieces in closer detail in the coming weeks). If (for reasons beyond comprehension) you or your institution are not yet subscribed to JECLAP, you will be pleased to see that some contributions are available in Open Access format.

Enjoy and do not hesitate to contact us and/or the authors with any comments!

Rules, Discretion, and Reasoning According to Law: A Dynamic-Positivist Perspective on Google Shopping (open access), by Justin Lindeboom (Groningen).

The General Court’s Google Shopping Judgment Finetuning the Legal Qualifications and Tests for Platform Abuse, by Friso Bostoen (Leuven).

Bronner revisited: Google Shopping and the Resurrection of Discrimination Under Article 102 TFEU, by Christian Ahlborn, Gerwin Van Gerven and Will Leslie (Linklaters).

Article 102 TFEU, Equal Treatment and Discrimination after Google Shopping, by Lena Hornkohl (Max Planck Institute Luxembourg).

Anticompetitive Effects and Allocation of the Burden of Proof in Article 102 Cases: Lessons from the Google Shopping Case, by Raffaele Di Giovanni Bezzi (European Commission).

Google Shopping and the As-Efficient-Competitor Test: Taking Stock and Looking Ahead (open access), by Germain Gaudin (Freiburg) and Despoina Mantzari (University College London).

Business Models and Incentives: For an Effects-Based Approach of Self-Preferencing?, by Patrice Bougette (Côte d’Azur), Axel Gautier (Liège) and Frédéric Marty (Côte d’Azur).

Between Substance and Autonomy: Finding Legal Certainty in Google Shopping (open access), by Yasmine Bouzoraa (Groningen).

Following the Google Shopping Judgment, Should We Expect a Private Enforcement Action?, by Jeanne Mouton (Côte d’Azur and College of Europe) and Lewis Reed (College of Europe).

Written by Pablo Ibanez Colomo

6 April 2022 at 3:06 pm

Posted in Uncategorized