Chillin'Competition

Even without trying, we find ourselves looking back (and forward to what is coming) by the end of every year.

As far as I am concerned, this natural inclination is compounded by the fact that it is almost exactly a year since the publication of The New EU Competition Law. I am pleased with how it has been received, and have the best memories of the few trips to discuss it with friends and colleagues.

On this occasion, the book is also an invitation to look forward. As I was working on it, I quickly realised that The New EU Competition Law is but the first part of a trilogy examining the transformation of our field. If all goes well, next year, by this time, I will be announcing the publication of the second volume.

Book aside, I have been able to get some papers and book chapters out. This year’s vintage features the following:

Competition on the merits, published in the Common Market Law Review. It came out in January, but I have not changed my mind since. Competition on the merits, as a relic of times past, is an ‘irritant’ in the case law (as apparent in the Draft Guidelines). The notion has undergone a surprising revival which (I like to believe) will be short-lived.

Restrictions by object under Article 101(1) TFEU: from dark art to predictable framework, forthcoming in the Yearbook of European Law. This is a paper that pretty much wrote itself, as the Court of Justice kept issuing major rulings interpreting the notion of ‘by object’ restriction. The central idea behind the piece stems clearly from its title: it is no longer possible to argue that the notion is unclear. The Court has developed an analytical framework that has proved resilient to pressures from all sides.

Resale price maintenance in EU competition law: understanding the significance of Super Bock, recently published in World Competition. In a sense, this piece is a companion to the preceding one. It is also a reminder that EU law cannot be fully understood without considering how it is applied at the national level by courts and authorities (as I pointed out here).

Remedies in EU antitrust law, accepted in the Journal of Competition Law & Economics. Antitrust law is now in the age of remedies: never before had the adequate design of measures ending the infringement been so central to effective enforcement. In spite of this fact, remedies remain relatively misunderstood. I discuss their nature and purpose in the article, and propose some adjustments now that Regulation 1/2003 is being reviewed.

This paper (like all the rest, really) is dedicated to the memory of Heike Schweitzer. It is impossible for me not to think of her when working on all things competition law. Honouring her memory and legacy is high up on the list for 2025 and beyond.

Last, but not least, I published a chapter on data leveraging in energy markets (jointly written with Alexis Brunelle, Adrien de Hauteclocque and Juliette Ogez) for the Research Handbook on EU Competition Law and the Energy Transition, edited by Leigh Hancher and Ignacio Herrera Anchustegui.

As to what is in store for 2025, there is, among others, a piece on Hoffmann-La Roche forthcoming in Landmark Cases in EU Law (and on which I did a great deal of research into the concept of competition on the merits) and the forthcoming and much awaited edition of EU State Aid Control: Law and Economics, where I contribute a chapter with Damien Neven on State aid as a successful legal export.

Before I forget: 2024 will always be the year the blog reached 3 million views. Thanks you all so much for reading and sharing your thoughts over so many seasons!

The latest contributions to this series (see here) dealt with the analysis of effects. The main point it made is that we need clarity about the meaning of the notion of effect: the litmus test of the whole exercise depends on whether there is clarity about what an effect is and what it is not.

There are more aspects pertaining to the analysis of effects that could benefit from greater clarity. Over and over, we see the some issues that keep coming back, Sisyphean in their persistence, even though they should have long been behind us.

The Guidelines on which the Commission is working provide an ideal chance to address some of these common misconceptions around the issue of effects. I cannot think of a better forum to convey clarity, certainty and, above all, a clean, discernible analytical framework on which national courts and authorities can rely.

As far as the fundamental issues that could be addressed, I can think of the following:

Actual and potential effects are about the time dimension of the analysis

The distinction between actual and potential effects refers to the temporal dimension of the analysis. There should be little doubt, after the Court’s careful analysis in the Servier saga (see here), that references to potential effects relate to instances in which the assessment is prospective (that is, about an effect that may materialise in the future).

Contrary to what is sometimes (read: often) suggested, ‘actual’ and ‘potential’ do not refer to different substantive thresholds (the former being more demanding than the latter). In fact, they are not really, or not exactly, about the substantive threshold (keep reading till the end for more on this).

Clarifying this point is key for a number of reasons. The most salient of these, I would say, is that it makes sense to use the vocabulary consistently across issues and provisions. Using the same words to mean different things is a recipe for opacity and confusion.

When we talk about actual or potential competitors, we refer unquestionably to the time dimension: a potential competitor is one that has not yet entered the market but may do so in the future. This is, by the way, the manner in which the concept is used in the Draft Guidelines.

It would make little sense to refer to ‘actual’ or ‘potential’ in a different way when talking about the analysis of effects.

Appreciability, de minimis and significant effects

The Court of Justice has held unambiguously that, in the context of Article 102 TFEU, it is not necessary to show that the effects on competition are significant or appreciable. In other words, there is no such thing as a de minimis doctrine when the concept of abuse is at stake.

I do not believe there is anything controversial in this position. Because the application of Article 102 TFEU presupposes a finding of dominance, there is by definition no scope for de minimis doctrine.

This is a point on which the final version of the Guidelines could be even more explicit (ideally with a reference to Völk, where the Court explained that the doctrine applies on account of the ‘weak position’ of the parties in the relevant market, and which is not mentioned in the Draft).

The fact that the de minimis doctrine has no role to play in the context of Article 102 TFEU does not mean (this is another major source of confusion and misunderstandings) that every practice implemented by a dominant firm and/or every competitive disadvantage it inflicts upon rivals necessarily has an anticompetitive effect.

The rejection of the de minimis doctrine simply means that effects, when established, will necessarily be appreciable. But this fact does not dispense the authority or claimant from the need to establish these effects to the requisite legal standard in light of factors such as the coverage of the practice.

The substantive threshold of effects

An additional aspect on which the Draft Guidelines is silent, and about which a conversation is as necessary as it is indispensable, relates to the substantive threshold of effects. The issue is bound to be discussed sooner or later and it would be best if it were openly addressed by the Commission.

It has already been mentioned that effects may be potential. The Court of Justice has clarified, moreover, that the practice must be ‘capable’ of having such effects. These points do not say anything, however, about the requisite threshold of probability.

When the analysis is prospective, is it enough to show that the practice is a plausible source of anticompetitive effects? Is it necessary to show that it is likely to do so (that is, a probability of >50%)?

The case law is not unequivocal on this point and there is room for interpretation. One thing is clear: it is not necessary to show that the practice is certain to affect competition. I have always been of the Opinion that AG Kokott is on the money here and that the substantive threshold is one of likelihood (probability >50%).

As I say, the Draft Guidelines would be the right forum to address this matter once and for all. It would also be a great opportunity to make it clear (if only in a footnote) that the substantive threshold of effects is different from the standard of proof (even if both are expressed in probabilistic terms and even though they are, all too often, conflated).

I very much look forward to your comments, on this post and the rest of the series (see here, here and here).

The LSE Short Courses on Advanced EU Competition Law and on State Aid and Subsidies Regulation were launched a bit more than four years ago. I am really pleased that they have been received so enthusiastically by our community (so much so that we launched an extra edition of the competition law course in 2024, which finished a couple of weeks ago).

The next in line is the Short Course on State Aid and Subsidies Regulation, which will run between January and February of this coming 2025. A particularly exciting time with the many changes that the discipline is undergoing. There are still places available and it would be wonderful if you could join: all the info can be found on the link to the course here.

As usual, the short course will take place online and it is designed with full-time professionals in mind. Attendance will be capped at around 25 participants to maximise interaction (which, if you ask me, is one of the big pluses of this format: every edition is unique, and very much shaped by the discussions).

The sessions will be on four consecutive Thursdays: 6th, 23rd and 30th January, as well as 6th February (at the usual time: 2pm to 6pm London time).

An LSE Certificate will of course be available upon completion, along with CPD points for practitioners.

If you have any questions about the organisational aspects of the two courses, do not hesitate to contact my wonderful colleague Amanda Tinnams: A.Tinnams@lse.ac.uk.

ASCOLA needs no introduction in the competition law community. It has become the privileged forum for the exchange of ideas among scholars specialised in the field. The expansion it has undergone in the past few years is truly remarkable, and testament to its growing importance and the hard-work of the leaders steering the ship.

Next year’s conference (26-28th June) will take place in one of the landmarks (both in the geographic and the intellectual sense) of antitrust and competition law: Chicago. Participants will be hosted by renowned Professor Spencer Weber Waller at Loyola University Chicago School of Law.

If you are interested in taking part in the conference, the call for papers can be accessed here. As usual, the call is open to diverse disciplinary approaches: diversity is, in fact, one of ASCOLA’s trade marks.

On top of that, I very much like that organisers have identified three streams for potential participants: (i) academic papers (the general stream, for papers that have the typical length of a research paper); (ii) early-career researchers; and (iii) early project ideas (for very short submissions that seek to test new concepts or ideas).

For more information (other than that provided in the call for papers), it is probably best to get in touch with the organising team at ASCOLA2025@luc.edu. Best of luck with your submission!

This month’s issue of World Competition comes with a short piece of mine (the submitted version of which is available on ssrn here) on resale price maintenance in the aftermath of Super Bock.

I thought it interesting to say a word on it, since it is, I feel, one of these rulings that is only fully appreciated when read in conjunction with developments at the national level. Those of you who read Portuguese might want to take a look, in particular, at the judgment of the Tribunal da Relação de Lisboa following the preliminary ruling.

How does Super Bock change or refine our understanding of Article 101(1) TFEU? Prior to this judgment, resale price maintenance was considered to be restrictive of competition always and everywhere (that is, without the need to consider the relevant economic and legal context and without the need to take into account the aims pursued by the parties).

In Binon, in fact, the Court expressly dismissed the relevance of any contextual considerations when vertical price-fixing is at stake. Such an approach to the assessment of restrictions of competition was, unsurprisingly, the one followed by the Portuguese first-instance court in Super Bock.

The problem? Binon is at odds with subsequent case law, which has in turn been consistently followed by the Court in the past decade. The significance of Super Bock lies precisely in the fact that it addresses this friction and makes it explicit that the orthodox framework is also extensive to resale price maintenance.

Thus, resale price maintenance is no longer the ‘odd one out’ in the aftermath of Super Bock. Whether or not this practice restricts competition by its very nature depends on an analysis of the content of the agreement, its aims and the economic and legal context of which it is a part. The analysis, in other words, is not formalistic, but context-specific.

The impact of the preliminary ruling in Super Bock is best appreciated in light of the judgment of the Tribunal da Relação de Lisboa, which ruled on appeal in the national dispute. Following the guidance of the Court of Justice, the Tribunal found that the first-instance court had erred in law by following the Binon approach and meticuously ascertained the object of the practice in light of the factors identified in the case law.

The main lesson to draw from Super Bock is that resale price maintenance may not always restrict competition by object. It is not difficult to think of scenarios where the practice pursues a ‘legitimate aim’ within the meaning of the case law and might therefore not be caught, in and of itself, by Article 101(1) TFEU. Whether these hypotheticals will find their way in concrete cases is, alas, a different story.