Chillin'Competition

We had a great discussion on exclusionary abuses last Tuesday at LSE. We were delighted to see how many of you joined us online to what was (at long last) a Chillin’ event (rest assured there will be many more to come).

During the event, I shared a presentation outlining my main ideas, which you can find here. I would very much welcome your thoughts on the main points I made, which I can summarise as follows:

Enforcement under the Guidance is in a much better shape: the days of Michelin II and British Airways are long gone, which is why we tend to forget how much in need of reform Article 102 TFEU policy was at the time.

In the years that have followed the Guidance, enforcement has remained robust (both in qualitative and quantitative terms), and has become wiser (in the sense that the intellectual foundations are much more solid) and more predictable (again, we tend to forget how unpredictable enforcement was in the old days).

The analysis of effects is not a luxury or an indulgence from which we can dispense. It is the key tool to distinguish between conduct that is on the whole pro-competitive and behaviour that can be expected to harm the competitive process. One should not forget that the majority of practices potentially caught by Article 102 TFEU are, most of the time, normal expressions of competition on the merits.

The above said, it is worth reflecting on some of the criticisms that have been directed at enforcement under the Guidance. Is the analysis of effects overly cumbersome? Is intervention difficult to tell in advance?

Structured legal tests could be part of the answer to these concerns while preserving the essence of the Guidance. From this perspective, the forthcoming Gudelines provide a good opportunity.

Contrary to what is sometimes said, the evaluation of the actual or potential anticompetitive effects of a practice need not be open-ended or all-encompassing. It can be structured around a number of solid proxies and finite lists of criteria. This, in fact, is what the Court of Justice has been doing over the past decade (just think of Intel).

The case law could be codified in line with this principles. For instance, there is little doubt that the coverage of a practice is central to the assessment of the actual or potential impact of a potentially abusive practice. Why not rely on a bright line (say, 30% coverage) to define the instances in which effects are more likely?

If effects can be established always and everywhere, then the test of effects is a bad one. Any attempt to recalibrate policy should not come at the expense of predictability. If the test is reconfigured so that the analysis of effects becomes little more than a formality, it will not be possible to anticipate enforcement (the Commission would always find a way to show an impact on competition).

In the same vein, I explained that the hard questions cannot be avoided. These hard questions include:

• The meaning of effects.
• The threshold of effects. We all agree that Article 102 TFEU is concerned with actual or potential effects. But the notion of potential effects does not answer the question of what threshold applies. AG Kokott suggested that the case law demands a threshold of likelihood (probability of >50%) when looking at potential effects. I agree with her understanding of the relevant rulings.
• Causality: The difference between competition law (understood as a system aimed at protecting the competitive process) and economic regulation aimed at restructuring markets so that they conform to the particular vision of an agency is the issue of causality. As emphasised by the EU courts in recent years, Article 102 TFEU is only triggered when the actual or potential effects are attributable to the behaviour of the dominant undertaking.

I very much look forward to your comments. As you know, I have nothing to disclose.

We hope many of you will be able to join our LSE-Chillin’ Webinar next week (Tuesday 25th April; 4pm London time, 5pm Brussels time).

You can now register for the event here. The link provides all the necessary information to join us remotely on the day.

Alfonso and I will be discussing the future of Article 102 TFEU enforcement with my colleague Niamh Dunne, Mark English and Jorge Padilla.

Do not hesitate to get in touch with any questions. See you next week!

Alfonso and I have concluded that the Commission’s plans to issue Guidelines codifying the law of exclusionary abuses is important enough to set up, at long last, a new Chillin’ Competition event. So please save the date (Tuesday 25th April) and time (4pm London time; 5pm Brussels time), for a webinar on the subject.

My colleague Niamh Dunne and I will be welcoming at LSE Law School a true Article 102 TFEU dream team made up of Alfonso himself, Mark English and Jorge Padilla. We will be chatting with them about the future of the Commission’s policy on exclusionary abuses.

We hope to many of you will be able to join us via Zoom. We will be providing details on how to register early next week, so keep an eye on the blog! In the meantime, please get in touch in case you have any questions.

Many readers will remember the inaugural Ithaca Competition Conference, which took place in the Summer of 2018. It has long been known that returning to the island of Ithaca takes a while. This time has not been an exception. Now that the pandemic is firmly behind us, Peter Alexiadis has put together the (epic) programme for the second edition.

You can take a look at it here. As you will see, it is full of superstars (from civil service, practice and academia).

The event will take place over three days in August (3rd to 5th). The start is strong: a panel with no fewer four former Chief Competition Economists at DG Comp, (Kai-Uwe Kuhn, Damien Neven, Pierre Regibeau and Tommaso Valletti) who will be looking back and into the future in conversation with Jorge Padilla.

That would be enough to make the programme attractive, but there is even more: a panel on digital (with, just to mention a few, Filomena Chirico and Alex de Streel) and one on energy (with a dream team that includes Martin Cave, Leigh Hancher, Adrien de Hauteclocque and Carole Maczkovics, all chaired by the OECD’s Ruben Maximiano).

The conference will close with a discussion about the direction of travel in competition law and policy featuring, among others, such enforcement luminaries as Cani Fernandez, Ioannis Lianos and Henri Piffaut.

You can register for the event here. Please note, that, if you are a competition law student, you can register at a discount and the organisation will provide affordable aaccommodation.

The programme includes a very detailed Q&A, including on how to get there. If you have any questions, I am sure Peter will be delighted to answer them!