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Derogations from competition law (and yes, endives)

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There are good chances that many of you have read/heard me say before (the last time towards the end of this speech) that whilst competition law is important, there are many more important things, some of which should not be subject to the competition rules, or even to competition.

Most jurisdictions contemplate legislative or judge-made specific derogations from application of the competition rules. Those derogations, and the way they are interpreted, are actually quite telling about a given society and its values:

In the EU, for instance, the Treaty provides for derogations for services of general economic interest [something largely and effectively called into question in a stream of cases in which I have been working for some time now; see here for one of them]. for defense or for agriculture. The EU Courts have also recognized that certain areas enjoy precedence over competition law (this is the case, for example, of collective bargaining agreements (in Albany). Then there are also a number of exceptions or special rules that apply regarding some areas (e.g. sports) or national interests (see Art. 21 of the Merger Regulation).

And in the US, well, there is an antitrust exemption for baseball….

The preliminary reference (C-671/15) in the French endives (argh..) case brings these key issues back to the fore. Last week we sort-of-commented jokingly on AG Wahl’s Opinion (see here), but today we want to go beyond easy endive puns and instead put the issues on the grill. Whilst the case is about the boundaries of the agriculture derogation, the rationale applies to policing the confines of any exemption or derogation.

The legislative exemption as such is not the subject of the debate (it is accepted that some forms of coordination and concertation on the part of producers are needed for them to carry out the functions that EU law attributes them, namely those of adjusting production to demand, reducing the costs of production and stabilizing producer prices). In fact, both Art. 42 TFEU and the case law give precedence to the Common Agricultural Policy over competition policy. The case at issue is rather about practices (in this case a fixing of minimum prices, the agreement of quantities placed on the market and the exchange of strategic information) not referred to in the “general derogations” but that are somehow linked to those objectives (some argue that so much that they should benefit from “specific derogations”). In a nutshell, AG Wahl considers that only practices that are strictly necessary for the fulfillment of the tasks attributed to producer organisations may escape the reach of competition law. Conversely, he understands that practices that merely contribute to those tasks cannot be exempted from the competition rules.

This is an approach that fits squarely within the principle that exceptions are to be interpreted narrowly. Actually, a very similar logic has been endorsed by the CJEU, the Commission and national competition authorities regarding collective bargaining in the wake of Albany. Admittedly, as we know well in the competition field, requiring indispensability (something to be “strictly necessary”) equates to setting a pretty high burden, more than a requisite of “necessity and proportionality” more typically applied for State measures to be able to benefit from derogations under EU Law or, within competition law, to sporting regulations following Meca Medina. Another valid analogy could be drawn with Deutsche Telekom, where the Court ruled that the existence of sector regulation only precludes the application of the competition rules when it eliminates any possible scope for autonomous action on the part of the firms at issue.

Interestingly, when attempting to discern what is strictly necessary to the fulfillment of the tasks assigned to producer organizations, AG Wahl places the greater emphasis not so much on the actual necessity link but rather on the identity of the undertaking(s) adopting the practice (or perhaps in doing so he bridges the two elements). In essence, he considers that only practices adopted within a given producer organization (or association thereof) actually in charge of managing the production and marketing of the product concerned can escape the competition rules. On the other hand, he proposes that practices within or with entities not responsible for marketing for their members products be subject to competition law. This is interesting but in my view (and this is just a first thought or a thought in progress) not may always be such a bright line, as some agreements with third parties might in some cases be necessary to practically implement what is decided within a given organization (admittedly, these questions of severability are pretty thorny and largely unresolved; for a related comment on this point see the discussion on “fruit agreements” here).

We won’t go into how he applies these principles to the facts of the case (which at first sight I think makes perfect sense if you agree with the bright lines proposed) as we are more interested in the general logic. More than other times, these are our first impressions after a quick read. As always, your thoughts would be most welcome.

Written by Alfonso Lamadrid

19 April 2017 at 11:53 am

Posted in Uncategorized

AG Wahl on endives (Part I)

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 AG Wahl delivered two interesting Opinions last week, one on excessive pricing and one on endives. We will comment on the excessive pricing Opinion next week. For now, we bring you a light endive aperitif that enables us to comment on two of our preferred topics: Mr. Wahl and, well, that vegetable…

Indeed, AG Wahl’s Opinions have provided regular food for thought on this blog. In a very short period, and one of relative scarcity of developments, he has had the opportunity to meaningfully contribute to some of the most interesting debates in current competition law and we have followed it all closely, be it on restrictions by object (Cartes Bancaires, see here and here for our comment), on inspections and fishing expeditions (Deutsche Bahn, here and here for our comment), on the limitations to requests for information (Cement cases, here and here for our comment), on the notion of restriction and on the role of facilitators (AC Treuhand, here and here for our comment) and on exclusivity rebates (Intel, here and here for our comments). He was also kind enough to accept our invitation to speak at our first Chillin’Competition conference as well as, most recently, at a seminar in Madrid.

On the other hand, endives…As odd as it sounds, once upon a time this blog was identified with endives. After all both are relatively successful and no one understands why… The fact is that we were the first to react to the endives cartel (see here, including expert views, recipes and pieces on the role of Belgian endives in US politics), given the great interest we created the “Endive Brainstorming Room” (which triggered some of the most profound thoughts in the history of competition rules, see here), we noted that their relationship with competition law was discussed during French Presidential debates (ah, the days when people discussed endives instead of EU referendums!; see here).

Some of you will even remember that our brave pieces of legal journalism on endives [which should definitely have earned us the Antitrust Writing Award in the Belgian Vegetables category 🙂 ] even brought us legal trouble, when Chillin’Competition faced a legal challenge whereby we were asked to abide by endives’ right to be forgotten (see here).

Given our unparalleled coverage of AG Wahl and of endives, we can’t help but think that this was a perfect (and sadly missed) opportunity for the AG to have introduced blog citations into the practice of the CJEU. I guess I’m nostalgic of the days when the great and late AG Ruiz-Jarabo would refer to, for example, Jack Sparrow and Pirates of the Caribbean in his Opinions (see my comment to this post). And, moreover, don’t they say that blogs have now surpassed law reviews?

Pablo and I are so committed to elevating blogs to the category of proper academic commentary that we hereby commit before all of you to do the following:

If AG Wahl cites this blog in any of his future Opinions, Pablo and I will race each other for 5 laps around the Court of Justice in Luxembourg holding endives and wearing shirts from the Swedish national football team (unless he has other preferences) 😉

*Small print note: this commitment is not solely restricted to AG Wahl. If any other AG cites us before, we will do the same, only with apparel from their country of origin or of their choice.

P.S. Ah, yes, we haven’t yet commented on the substance of the Opinion. We’ll leave that for the next post.

Written by Alfonso Lamadrid

13 April 2017 at 10:58 am

Posted in Uncategorized

Beyond Endives

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As most readers know, Alfonso has been gung ho about endives.

On pain of breaking the anti-food fatwa enunciated yesterday by my learned co-blogger, I must report today the ultimate case in this series of post.

Earlier in the month, the Belgian competition prosecutor issued the equivalent of a SO in a case concerning a “salad” of unlawful exchanges of information. Please tighten your seatbelt. The practices under investigation cover:

  • Candies, including possibly chocolate;
  • Ice-cream;
  • Sauces (BBQ season is coming);
  • Veggie and other stocks;
  • Pet food…

Clearly, the scope of this investigation goes beyond anything reported earlier on this blog.

Thanks to Aoife White (Bloomberg) for the pointer.

One last thing: given my co-blogger’s obsessive focus on food, I suggest that, for our next quizz, chief Alfonso cooks an antitrust dinner to the winner, where endives will be served with flour and BBQ sauce.

Written by Nicolas Petit

27 March 2012 at 7:15 am

Posted in Uncategorized

Presidential Endives

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Endives have been a highlight of this blog.

They have become a presidential topic.

Last week, in a large-audience TV programme, N. Sarkozy discussed – and actually lambasted – the decision of the French competition authority (FCA). This comment was in reaction to a question by a woman in the audience, who complained that the FCA decision prevented agricultural producers to coordinate selling prices.

Here’s N. Sarkozy’s answer (quick and dirty translation):

The FCA “went a little to far … I would like agricultural producers to be able to sell at prices above production costs … hence one must define, with other production groups, what is an average production price … and the competition authorities must not consider this average production price as a restriction of competition“.

In clear, the price of veggies should be defined collectively amongst producers at a level > costs, and the competition watchdogs should not challenge this.

But there comes my preferred part. To conclude N. Sarkozy added, referring to the FCA officials:

They must have the intelligence of understanding that were are not talking about Microsoft and Apple“.

Check the video above or here between 2:00:45′ and 2:01:57′.

Written by Nicolas Petit

20 March 2012 at 8:10 am

Posted in Case-Law, Uncategorized

Reactions to the endives cartel

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The French Autorité de la Concurrence has imposed a fine of 3,6 million euros on four French endive growers for their participation in an endive cartel.

The news has attracted the interest of our readers, who have sent us several emails suggesting a post on this story. The interest of our readers on endives has matched that raised in the past by the Dutch investigation on erotic toys and costumes. Weird.

The news has spurred interesting reactions from some experts. “This case proves that what competition law/economics considers in the interests of consumer welfare (low prices, lots of endives) does not necessarily equate to what society (or the students at the College of Europe in Bruges) would consider consumer welfare!”, says Grace Aylward.

Some background: Grace studied as the same time as me in Bruges, and we both share the suspicion that all of the French and Belgian stocks of endives are regularly served to the students at the College of Europe. There is no other plausible explanation as to why endives featured in the menu every other day.

Consulted about this phenomenon, Napoleón Ruiz (who also claims to have been affected by overfeeding of endives in Bruges) said to Chillin’Competition that “the decision of the Autorité de la Concurrence will have the effect of enhancing the dominant position of endives at the menu of the College’s canteen“.

“They are disgusting; I can’t stand them” said Mark English.

Mr. English directed us to another competition lawyer Alex Papanikolaou (“ask Alex; he was a real canteen presence”, he said). Mr Papanikolaou seems to share the opinion of his peer: “Hard to believe people would buy and consume these things at any price, let alone at cartelized prices“, he says.

A legal director at a high-tech company who requested anonimity said “they are as bitter as the country where they’re grown. Anyone buying them deserves the overprice”.

A partner at a Spanish firm says “the Bundeskartellamt should imitate the French Authority and investigate manouvres by German growers of cucumber to impede imports of Spanish cucumber. Why focus on endives when you have cucumbers?”

Please comment on this post if you also have an strong opinion on this investigation.

P.S. For further information on endives click here. For the role of Belgian endives in US politics click here (I’m not joking; and I bet this is the link that you’ll click the most). For recipees featuring endives, click here.

Written by Alfonso Lamadrid

7 March 2012 at 9:08 pm

Reactions to DG Comp’s beer investigation

with 4 comments

 

A few days ago the European Commission opened an investigation into an alleged abrewse of dominance to restrict beer imports into Belgium (see here).

Ale those of you that thought we would barley survive without endives will now hopfully realize that this blog is lager than one single product. At yeast, we now have a hopportunity to show that we can focus on the big pitcher.

To be sure, there have been plenty of cases concerning beer before and we have written a number of posts on this drink (see e.g. here and here). In that sense, this may seem like a déjà-brew.

Indeed, alcoholic beverages are perhaps the product that has contributed the most to EU case law and to competition law in particular. Sometimes they were the subject of cases and, even when they were not, their influence clearly emanates from the content of some decisions…

But… wheat a second…. Actually, we can’t comment on this case due to a conflict: AB Inbev was the sponsor of the brewtal open bar we held at our first Chillin’Competition conference. Anything we say could therefore be regarded as an attempt to persuade the Commission to leffe the company be and drop the investigation.

Instead of providing you with our views, we will therefore provide you with some reactions from people who typically seek reactions, the members of the “Brussels competition press corps”, who have a stella reputation as competition commentators and a thorough knowledge of the relevant market. Our sources include Aoife White and Gaspard Sebag (Bloomberg), Rochelle Toplensky (FT), Lewis Crofts and Matthew Newman (MLEX) and Nicholas Hirst (Politico).

Unfortunately, after a few drinks we don’t remember who said what, so we can’t really attribute any quotes, sorry.

According to one of our sources, the decision to open the case was adopted only in light of a special report from the Chief Economist. The aim of the report was to identify the product that enjoyed the highest consumption among officials. This was part of a strategy to first adopt a decision and then lodge a follow-on action for damages suffered by the Institution, much like what happened in the elevators case (see here).

Another Brussels-based journalist reports, on the contrary, that the case originates from an informal complaint by the College of Europe alumni association (based in Place Lux) that, reportedly, is preparing a billion euro class claim.

The “Brussels Bar Association” also claims to be thd representative of the main class affected by the case. We have no confirmation of whether they represent lawyers or actual bars.

Conversations between our sources and parties connected to the case nevertheless all converge in anticipating that defence arguments will be threefold, namely (i) -“Who ever reads the small print on beer cans??”; (ii) “Competition is just one Chimay away” and (iii) “Hasn’t anyone realized that water is more expensive in this country!?”.  Economists in turn, are wondering whether one should factor in hangovers and associated lack of activity to the consumer surplus/deadweight loss analysis.

The case is also expected to shed light on several procedural issues (“if you stop drinking, can you challenge jurisdiction?”). The investigation is nonetheless expected to leffe issue unresolved and to result in consumer uncertainty (“so where do I go to buy my Christmas Kriek supply – Lille or Eindhoven?”, is a question many are asking themselves in the wake of the Commission’s press release).

If any of you has any comments on the case, feel free to comment on this post.

Cheers!

Written by Alfonso Lamadrid

11 December 2017 at 2:11 pm

Posted in Uncategorized

Goodbye

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It is time to say farewell. It was fun while it lasted. We did our best to come up with different angles, sometime serious, sometimes purportedly fun. But after 5 few years and many posts, we have run out of interesting things to say.  We started this jokingly and improvising, but it now feels like an obligation, people expect something, but we need to focus our time on other things. We very much hope you will understand.

Indeed, as sad as it may be, after the CJEU’s ruling from yesterday. the endives case is now over. It gave us much food for thought and bad puns, but it is time to move on and discuss other competition issues. Farewell, endives. The blog will continue without you.

If you ask us, these were our highlights (we just had a good laught while re-reading them): see here for the first post,  here for an example of how the blog fostered collaborative thinking, here for a hoax that some took seriously, here for a discussion on enforcement menus, here for a post that I hope will be forgotten and, for a change, here for a more serious comment.

And speaking of food, Commissioner Vestager was kind enough to mention the Syrian lunch served at the Chillin’Competition conference in her Wired interview a few days ago (check it out at minute 28). If you want to follow her advice, you only need to contact our friends at weexistngo@gmail.com

P.S. The immediate reactions to this post by email and Twitter have confirmed what we suspected: the people who say like this blog the most are the ones who don’t really read what we write! 😉  This natural experiment confirms the latest press reports on people sharing links based only on headlines and excerpts 

 

Written by Alfonso Lamadrid

15 November 2017 at 11:26 am

Posted in Uncategorized

On Excessive Pricing: The Common Ground in AG Wahl’s Opinion and Commissioner Vestager’s Chilling’Competition Speech

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On 6 April AG Wahl delivered an Opinion in a case that he sees as “an opportunity to clarify he conditions under which the imposition of high prices by a dominant company” might run afoul of the competition rules. The Opinion is timely. It comes a few months after Commissioner Vestager delivered a speech –precisely at our Chillin’Competition Conference- that focused on excessive pricing. The Commissioner’s speech (a full video of which is available here, including Q&As) spurred quite some commentary, but we had yet to give our views. The Opinion gives us the opportunity to also do that now.

AG Wahl’s Opinion has been reported as somehow contradicting the Commissioner’s speech –and in fact has been portrayed by Trevor Soames –our former “correspondent” at the Intel Hearing; see here– as an “antidote” to that speech. In my view, however, on closer inspection both are pretty much aligned, and both are welcome examples of common sense.

To be sure, there are differences between the two. For one, you can expect more of a detailed legal discussion in an Opinion than you would from a short speech, and AG Wahl’s proposal refers to elements that the speech could not touch upon [By the way, another difference is that the Commissioner’s speech did refer to us by name, AG Wahl is yet to do so, although you know we are trying to fix that; see here 😉 ].

Below I set out the key messages contained in the Opinion and the way in which they tie in with the Commissioner’s speech. A few personal comments will follow:

On prudence. The Opinion starts off saying that “there is simply no need to apply [the prohibition against unfair trading conditions in Art. 102] in a free and competitive market: with no barriers to entry, high prices should normally attract new entrants. The market would self-correct”. AG Wahl notes that this is why the Commission has, “rightly” been “extremely reluctant to make use of that provision”.

Commissioner Vestager also insisted that “most of the time, we get consumers a fairer deal by keeping markets competitive, not by correcting prices or other outcomes in the market”, and emphasized that “we have to be careful in the way we deal with [exceptions to this rule]. The very conclusion of the speech was that “we need to act carefully when we deal with excessive prices. The best defense against exploitation remains the ability to walk away. So we can often protect consumers just by stopping powerful companies from driving their rivals out of the market. But we still have the option of acting directly against excessive prices”.

On the circumstances in which action may be needed. The Opinion nevertheless explains that markets may not be able to self-correct when there are “legal barriers to entry or expansion and, in particular, [when] there is a legal monopoly”. The Opinion relates to a case concerning allegedly excessive rates set by a collecting society. As AG Wahl observes, this is not a first. Actually, my second ever publication in the field of competition law already 12 years ago was precisely about excessive prices and collecting societies (the first was about fiscal state aid, all of which shows that in competition discussions we are cyclically reinventing the wheel…).

The Commissioner’s speech also identified, as an exception, that the Commission is “still bound to come across cases where competition hasn’t been enough to provide a real choice” and after explaining why competition authorities “have to be careful” (see below), she mentioned 3 examples of instances where action could be justified: Gazprom, pharmaceuticals and standard-essential patents, all of which share in common allegedly high legal barriers to entry.

On the methodology to assess allegedly excessive prices. As recalled in the Opinion (16-18), back in United Brands [1978] the CJEU laid down a two-step test to discern whether prices were “unfair”, “disproportionate” or “exorbitant” with regard to the value of the product at issue. First, one is to determine whether there is a significant difference between the price charged by the dominant company and what would have been charged in a competitive environment. Secondly, one needs to assess whether the price at issue is unfair in itself or when compared to competing products. In theory it sounds easy, right?

No method is perfect. When discussing how to approach the first step and determine the benchmark price, AG Wahl –as he often does- looks for the consensus in economic thinking, and in para. 36 states that “at the current stage of legal and economic thinking, there is no single method, test or set of criteria which is generally accepted in economic writings or across jurisdictions” . He –quite logically- observes that each of those methods “reveals some inherent weaknesses” (36), that their suitability depends “on the specific features of each case” (37); that the information required to conduct them may be missing, incomplete or controversial (usefully noting how different accounting methods may provide inaccurate pictures) (38); that mere comparisons across geographic markets are risky as markets are rarely so homogeneous as to allow for immediate and automatic meaningful comparisons (39) [on that point see also  paras. 61 and 65 ]; that comparisons between undertaking may overlook different qualities or value (40), and that comparisons over time may fail to account for rapidly changing business strategies or market conditions (41). The Opinion underlines that “because of those limitations, antitrust authorities and economists generally agree that the exercise consisting of determining the benchmark price (…) carries a high risk of producing both type I (…) and type II (…) errors”.

A combination of methods as the most perfect of imperfect solutions. Given the observed limitations, the main proposal in the Opinion is that in order to minimize risks, “competition authorities should strive to examine a case by combining several methods among those which are accepted by standard economic thinking” (43). Whilst recognizing that the weakness of one method is not remedied by applying other weak methods, the Opinion states that the convergence of results may be taken as an indicator of the possible benchmark price in a given case (45).

Additional indicators when only one method is available. According to AG Wahl, when only one method is available competition authorities should double check its results considering other indicators, including, (i) whether the market is or not protected by high barriers to entry or expansion (48); (ii) whether there is an expert sector regulator whose task is inter alia to control prices (in which case intervention may appear less warranted except, very importantly, in cases “where the sectoral authority should have intervened and erroneously failed to do so” (49); (iii) whether there is market power on the buyers’ side (50); and (iv) other factors relevant depending on the case (51).

[Commissioner Vestager’s speech also noted that “the best answer is often to adjust regulation” (…) even if “there can be times when competition rules need to to their bit to deal with excessive prices”.]

Purchasing Power Parity Index. In the case at issue the Latvian competition authority had “corrected” the rates applied in other 19 Member States in order to account for differences in purchasing power prior to comparing them with those applied in Latvia. AG Wahl notes that any comparison must be among very similar products and also in a broadly similar economic context (84), acknowledges that significant price differences exist for the same goods even in the EU (85) and therefore concludes that the PPP index can be a useful and appropriate instrument (86 and 92), its sufficiency depending on other factors. The bottom-line is that 1 euro in Germany has a different value than 1 euro in, say, Portugal, and that this should be reflected in the comparisons. Makes sense to me.

On when a price difference is excessive. It all often boils down to this. The Opinion states that theoretically any deviation from the competitive price may warrant intervention, but that this approach would “neither be realistic nor advisable” (102) given (i) the complexities inherent to establishing a benchmark and the risk of type I errors (which, citing Easterbrook, he notes involve a much larger cost for society in unilateral conduct cases) (103); (ii) the difficulty for the dominant company to estimate in advance what price would be legal and the legal certainty issue this entails (104); and (iii) the fact that competition authorities are not well-suited to be turned into price regulators.

[Commissioner Vestager’s speech also acknowledged some of these problems, and insisted that “we also need to be careful that we don’t end up with competition authorities taking the place of the market. The last thing we should be doing s to set ourselves up as a regulator, deciding on the right price”]

AG Wahl takes the view that a price can only be deemed excessive under 102 when it is both “significantly and persistently above the benchmark price” (106). Significant is simply described as “appreciably higher” and “persistently” as remaining/being recurrently above the benchmark price for a “substantial period of time” (107 and 108). The Opinion (109) acknowledges the remaining crucial question: how significant and how persistent? In Wahl’s view, neither the case law nor the decisional practice provide precise guidance or clear patterns (110), and this because the question cannot be responded in the abstract, it all depends on the case (111). As a consequence, he proposes that an authority should intervene “only when it feels sure” that “almost no doubt remains” as to the abusive nature of a price. The more significant the difference and the longer the period, the easier it should be to build a case. (112)

Prices unfair in themselves or when compared to competing products. In order to assess the fairness of a given price, the United Brands case law offers two possibilities, deciding on the basis of the price in itself or comparing it to other products. The AG provides some explanations on these alternative conditions. He explains that prices may be considered unfair in themselves when, for instance, the legislation enabled a dominant company to demand payment for services not requested (Merci Convenzionali or Grüne Punkt), as well as when the excessive price is a means to pursue a different anticompetitive aim (such as curbing parallel trade, e.g. General Motors and British Leyland).

The alternative comparison is presented as a “sanity-check” of the assessment made with regard to the benchmark price, particularly to include factors that were overlooked or that were not easily quantifiable in financial terms (including some types of costs, demand, consumers’ perceptions on the value or superior quality of the dominant company’s product) [Commissioner Vestager’s speech also made the point that caution was needed because “sometimes a company is dominant simply because it’s better than its competitors. And when that’s the case it’s only fair that it should get the rewards of its efforts”]

In sum, the Opinion explains that “it is only when no rational economic explanation –other than the mere capacity and willingness to use market power even when abusive- can be found (…) that a price may be qualified as excessive under Article 102”.

My personal comments:

As explained above, the Commissioner’s speech and AG Wahl’s Opinion have much more in common than some have suggested. They both acknowledge that competition law is to be prudent but that there are instances where intervention may be warranted, and both logically coincide in pointing to markets with high barriers to entry and particularly to legal and natural monopolies and, more generally, to market and regulatory failures. If anyone can point to real differences in their content, I’m happy to pay a round of beers.

Cases concerning exclusive rights are in my view clear candidates. For example, I have lately discovered a new phenomenon that consists of privatizing without liberalizing, whereby a legal monopoly is granted to a private party that is allowed or required under the national regulatory system to charge excessive prices. After all, if the concession holder is able to extract high prices it will be willing to pay more in exchange for the privatization. That way, the State gets more money, and so does the concession holder under the umbrella of national law. It’s a win-win for them, and a clear loss to everyone else, starting with consumers/citizens… ]

-I would therefore interpret the speech and the Opinion as supporting intervention in the right cases. But that may be my interested view (as a father of a 2 years old and purchaser of baby stuff I’m now very sensitive to excessive pricing ripping off consumers…).

-Actually, I had a recent conversation with the President of a national competition authority in which he expressed the view that running excessive pricing cases was almost a matter of legitimacy. After all, citizens/consumers have the impression that competition law is there precisely to combat excessive pricing and may not be so perceptive of the attempts to avoid these via the protection of competitive structures. Sometimes, he said, direct intervention would send a right message. This reminds me of the very last phrase in the Commissioners’ speech: “we still have the option of acting directly against excessive prices. Because we have a responsibility to the public. And we should be willing to use every means we have to fulfill that responsibility”. For more on my views on fairness and legitimacy in the Commissioner’s speeches, see here.

As a matter of fact, the widespread view that excessive pricing cases are rare in the EU is a bit misplaced. If one looks closely at national cases you will find that a surprising number of cases on unilateral conduct relate to exploitative abuses. My most frequent co-authors (Luis Ortiz Blanco and your very own Pablo) teamed up some years ago to write this article where they brilliantly make this point looking at Spanish practice.

-In sum AG Wahl’s Opinion is a welcome exercise of common sense and contains interesting points even if it still unavoidably leaves pretty open some the relevant questions. In practice, he advocates for prudency but ultimately relies on authorities’ discretion to pursue cases depending on whether they “feel sure” (see paras. 35 and 112) (and, to be sure, proposing a high burden and very much insisting on safeguarding the presumption of innocence in the face of uncertainty). This is a rare instance when AG Wahl appears to (unavoidably?) rely on the Commission’s enforcement-setting priorities as the main limitation to a wide prohibition (which he has rebelled against in Intel, for example).

Written by Alfonso Lamadrid

3 May 2017 at 4:57 pm

Posted in Uncategorized

What went on at our conference and more

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As you might have realized, other commitments have prevented us from writing much in the past few days. I would like to convey my heartfelt gratitude to the European Commission for doing everything possible to systematically send lawyers work in December.

So, a quickie is in order today:

We have found out that the lawyers at BDK have done a summary of what went on at the Chillin’Competition conference. It was first mentioned by Nicholas Hirst (Politico) in his weekly email, and today it was circulated as part of Lexology’s daily email. It is about time that we link to it too; thanks its authors for coming over from Serbia for the conference, for drafting it and for the very kind words. You can read it here:                          Chillin’ at the Chillin’Competition Conference

In the coming days we will be commenting on a few recent developments of interest. We’re still thinking whether to write something about the fact that there will now be a preliminary ruling from the ECJ in one of the cases that has attracted more attention in this blog: the endive cartel. I’m, not kidding. For those of you that don’t remember it, click here (I still can’t help laughing at some of the stupidities in those posts… 🙂 )

Tomorrow I will be speaking on platforms (yes, again) at ITIF. Pablo also spoke about platforms last weekend at the European University Institute in Fiesole. By the way,  if Giorgio or anyone else at the EUI reads this, please realize how cruel it is that you invite Pablo there while I only get invited to talks in the cold, rainy, gray alleged European capital of jihadism…

 

Written by Alfonso Lamadrid

8 December 2015 at 7:14 pm

Posted in Uncategorized

Speaking engagements

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Minutes after I published the post on endives’ right to be forgotten I received a call from the European Data Protection Supervisor’s office. At first I admit I thought it was someone (my first suspect was that guy from 21stcenturycompetition because he’d read a draft of the endive thing; don’t worry, Kevin, I won’t disclose you thought it was serious) returning the joke, but it wasn’t, and I got invited to speak next Monday  the most interesting (but closed door) Workshop on privacy consumers, competition and big data (to be held at the European Parliament and arranged in the wake of the EDPS report that we –actually Orla- discussed here).

I’d solemnly committed myself to have a life and not take on any more non-work (non-billable, that is) stuff in the coming weeks/months, but it was an offer I couldn’t refuse. My topic is Market Power in the Digital Economy.

Three days later, on Wednesday 5 June I’ll be providing an overview of the commitment decisions adopted by the Commission since the enactment of Regulation 1/2003 at the Brussels School of Competition’s annual conference. This event you really should attend (click here for info: Programme_Commitments in EU Competition Policy – 5 June 2014).

[ I apologize in advance to all attendants at these two conferences: I’ve an important General Court deadline on Friday and then a bachelor party weekend, so preparing might be a challenge. Yes, this is the ol old expectation-lowering trick ! ]

Then on 8 July I’ll be lecturing on EU competition procedure and on Special and Exclusive Rights (Art. 106) at the College of Europe’s Competition Summer School for Chinese officials. Talking with Chinese officials about how competition law applies to public measures should be quite an interesting experience.  And then on the 11th same procedural class in the context of the College’s summer course on competiiton law.

And then, following my first paternity leave in September, I really plan to take on less of these commitments.

Well, on 28 November I’ll be participating at the Swedish Competition Authority’s annual and always excellent Pros and Cons conference, which on this edition will be devoted to Two Sided Markets, but I couldn’t say no to that either…

Written by Alfonso Lamadrid

28 May 2014 at 5:52 pm