Relaxing whilst doing Competition Law is not an Oxymoron

My interview with Global Competition Review

with one comment

A few days ago, Global Competition Review issued the first edition of its survey of antitrust academics. As you can see here, it features 25 scholars working on the legal, economic and management dimensions of our field.

It was a pleasure to share some thoughts on the direction of competition law and policy and even more of a pleasure to discuss, for once, issues that wholly unrelated to antitrust (or indeed the law). Global Competition Review has been kind enough to allow me to reproduce the interview on the blog (tip: scroll to get to the non-legal stuff).

What is the next academic “frontier” for antitrust law or economics?

The implementation of complex remedies is the most obvious challenge for authorities in the next few years. Traditionally, a decision finding an infringement was the end of a case for a competition authority. No longer. Enforcement, in particular in digital markets, is far more ambitious. Agencies are now far less reluctant to engage in the sort of far-reaching intervention from which they shied away for decades. They do not hesitate to interfere with the design of products, to question the core of firms’ business models or to deal with exploitative conduct. These cases are inevitably more complex and demanding, and this in a number of ways. First, the authority must design (or at least approve) an appropriate remedy, typically in the form of a positive obligation (and not just a cease-and-desist order). Second, this remedy must be subsequently implemented and monitored. As a result, uncertainty may extend well beyond the date when the decision finding an infringement is adopted. Some recent cases involving Apple and Google go to confirm this point: disagreements about whether the remedy, as implemented by the firm, brings the breach to an end can go on for years.

Our community is only starting to realise how much this kind of ambitious enforcement is transformative. Competition law has been, for a long time, about establishing infringements, the remedy being, if at all, an afterthought. If this trend continues, the discipline, and debates in the field, will revolve primarily, if not exclusively, around remedies. At present, our field is imperfectly equipped to deal with this shift in the centre of gravity. It seems to me that the legal framework will have to be adjusted and a new kind of expertise developed.

What is the most important academic debate currently taking place within the competition community?

I would say that the most important debate is the one that is not taking place (and that, if you ask me, should be taking place). Until the beginning of the 2010s, there was wide consensus about what makes competition law legitimate: it was all about process. I mean process in a wide sense, as encompassing not only procedural aspects but also the substantive and economic side of things. Whether or not intervention is justified in a given case would follow the process, under this approach. It would all depend on whether the theory of harm matches the facts of the case, whether the economic and legal context has been considered in its full complexity and whether agency action remains within the boundaries of what is allowed by law. Under this understanding of competition law, review courts are central: it is for them to check whether process has been followed.

Things are now changing. It would seem that, for many, what makes competition law legitimate is not whether the appropriate process has been followed, but whether the outcome that is deemed desirable is reached. Competition law would then be legitimate where it produces a particular result (typically, a finding of infringement). Under this novel understanding, competition law would not be ‘fit for purpose’ if, for instance, it leads to the finding that a practice implemented by a digital platform is incapable of restricting competition, or that it is on the whole procompetitive. By the same token, judicial review is seen with suspicion. If a court comes to the conclusion that the agency had erred in law or fact, it is deemed an obstacle to enforcement, rather than as a safeguard.

People will of course have different views about the wisdom of this shift. What matters is to acknowledge the shift is underway and discuss its consequences.

Which competition agencies (if any) are pushing the boundaries (rightly or wrongly) of antitrust law or economics the most and why?

Allow me to mention, first, that it is not wrong for a competition agency to test the boundaries of its powers. It is what they are expected to do and what they should do. The flipside, of course, is that courts may conclude that their analysis in individual cases goes beyond what the law permits. The European enforcement model is more conducive to agencies testing the limits of the discipline. Add to that excellent, well-trained staff and the experience acquired over decades and you get the ideal mix. I have followed with a great deal of interest what the French Autorité de la concurrence and the Italian AGCM have been doing (the latter’s decision in Android Auto and Amazon are most intriguing). I also look forward to the outcome of the European Commission’s investigations into Apple’s practices, as they hint at novel interpretations in more than one way.

Most important academic paper or book you’ve written and why?

The Shaping of EU Competition Law, published by Cambridge University Press in 2018, is, I believe, my most important work for several reasons. First, because it crystallises my thoughts of several years. It is in a way the culmination of a path that started with several shorter pieces. Second, because it is also quite ambitious: I compiled a comprehensive database of all Commission decisions and all EU courts judgments. Third, because it is a more mature piece of work than my PhD (which gives me the hope that my best research is yet to come!).

Most important academic paper or book you’ve read and why?

I admire many competition law scholars, but I will go for Marc Galanter’s classic Why the Haves Come Out Ahead. It is, I believe, a must-read for any legal academic. It encapsulates what we could contribute to society (and we should all aspire to do as scholars). It addresses an important problem (the limits of legal change and the factors that explain why the powerful get their own way), adds to our understanding of the world and creates a meaningful framework for addressing it.

Is corporate capture undermining the integrity of academic research?

It is very important to be aware of the risk of capture, but I believe that this risk has been somewhat overstated (at least in Europe, which is what I know well). The community has reacted effectively and put robust mechanisms in place. By and large, claims of academics being captured should be taken for what they are, more often than not: just another corporate strategy to advance some stakeholders’ interests.

Do you accept paid work from private companies?

No, and never will. I am happy to explain why. Us academics are the most privileged people in this community. We are paid by our institutions literally to think and write. I believe this status comes with a duty to avoid actual or potential conflicts of interests, provided that our personal circumstances allow for it. And my personal circumstances happen to allow for it. I am immensely fortunate to have a secure, well-paid job at a leading institution. Plus, I do not have extravagant hobbies and have a habit of reminding myself of how lucky I am.

What are your hobbies outside of academia?

As said above, my hobbies are not extravagant. I enjoy running and reading non-competition stuff (Amélie Nothomb’s Premier Sang and Irene Vallejo’s El Infinito en un Junco, both widely translated, are the highlights of this year). I also enjoy cycling, hiking and trying vegan places with my partner (if you happen to be in London, we recommend Sazzy & Fran for breakfast/brunch, En Root for lunch and great music as well as What the Pitta for a cheeky takeaway).

Written by Pablo Ibanez Colomo

25 November 2022 at 10:49 am

Posted in Uncategorized

One Response

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  1. I agree enforcement is now a major challenge. However, with relation to high fixed costs now variable cost and high externally markets where absent intervention there would be no competition, enforcement has always been important and has always shaped markets : see for example the IBM undertakings that unbundles System 370 and creates peripherals and Pc markets and the ATT final decree and divestiture and then the BT/MCI anti trust undertakings that followed the ATT decree and which were given as merger control undertakings to ensure access on FRAND terms. Those undertakings then became the basis for Openreach and the thinking was the basis for WTO basic telecoms paper that liberalisation telecoms and technology markets in the late 1990’s. The challenge now for enforcers is that they don’t have Attorney General style powers but often only have limited regulatory remits and constrained powers to ensure compliance. Take for example injunctions that are available to courts (in equity) and could be applied for by an Attorney General to prevent abuse while investigation continues. That can and is done in many jurisdictions in the common law world. Less so here in UK as we have given a narrow role with limited remit to the CMA: see my paper for Res Publica “Closing the Enforcement Gap” available on line.

    Tim Cowen

    25 November 2022 at 2:56 pm

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