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Nut Complaint

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After MSFT I and II, bringing an Article 102 TFEU case against the Redmond giant may have seemed an easy shot.

This is probably what prompted the Omnis Group to lodge in December 2009 a complaint with the Commission alleging violations of Article 101 and 102 TFEU.

The Commission rightly dismissed the complaint in December 2010.

From both a factual and legal standpoint, the complaint looks indeed like a (bad) competition joke. 

Read and judge for yourself:

  • The allegations relating to Article 102 TFEU concern a market (Enterprise Resource Planning software) on which MSFT had a market share<5%. When the Commission disputed the complainant’s dominance allegation, Omnis Group had this to reply: the Commission’s data – which is based on market intelligence from Gartner and IDC – is flawed. Microsoft lied to market research companies. Quotes from wikipedia confirm Microsoft’s important market position…
  • Besides invoking all the existing types of antitrust violations under Article 101 and 102 (tying, refusal to deal, discrimination, cartel (!), monopoly (!)), the complainant took issue with a number of exotic antitrust infringements: misuse of European funds, violations of public procurement rules and corruption by Microsoft. No comment.
  • Last, but not least, the complainant requested a oral hearing pursuant to Regulation 773/2004.

Omnis Group lawyers should be commended for their knowledge of competition law, and their impressive mastering of legal strategy.

This, to me, is one of the nuttiest cases of 2010.

Written by Nicolas Petit

22 February 2011 at 9:30 pm

Posted in Case-Law

Some thoughts on the new anti-Google (Android) complaint (Post 1/3)

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At Chillin’Competition we have paid considerable attention to a number of IT-related competition developments, and –like most other followers of these matters in Europe and elsewhere- we have shown predilection to comment on the pending EC investigation over Google’s search practices. Nicolas, Pablo Ibañez-Colomo and myself have devoted tenths of posts to offering our –often conflicting- views on a number of issues raised in that case.

We –or at least I- had until now not really paid attention to the more recent FairSearch complaint regarding Android, and this despite the repeated warnings of Enrique Colmenero (our new associate and a geek who knows a bit about Android (he says not sufficiently well, I say it’s unbelievable), who was also the real author of my Google ppt), and who kept on telling me that the allegations in this complaint merited some public discussion. I first looked into it last week while writing the post about Skype’s integration with Windows, and realized that he’s right.

Given that all things Google raise the number of visits to the blog and spur more debate than other topics, we’re decided to comment on this yet non-case. We devoted a weekend to writing our preliminary views, and since the result is fairly lengthy we’ll be breaking the discussion into three separate posts: Today we will provide some background and deal briefly with market definition issues. Tomorrow we’ll discuss the predation claims. And Monday we’ll address the bundling allegations.

Before getting into substance, four disclaimers are necessary. The first is that by myself I wouldn’t have had the required technical knowledge to comment about this, so I’m borrowing Enrique’s (any errors, however, are only mine). The second is that we are not working for any party interested in this case and therefore comment on the basis of publicly available info (for fuller disclosure, some time ago I had two chats with someone on the complainants side as well as with someone working for Google; in both cases they let me know their views on the complaint). The third is that since we don’t want this blog to be a place to discuss cases in a seemingly one-sided way (much less when they are ongoing, like this one), we’ll be happy to open this platform to anyone willing to reason any disagreement with the opinions provided below. We don’t intend to defend a given position, but to reflect on issues that interest the antitrust community, and we are more than open to be persuaded that what we say is wrong. The fourth is that even if now criticize a complaint lodged by Microsoft FairSearch in the past we’ve also heavily critized complaints targeting Microsoft, like this one.

Bored already? If you’re stil reading I guess not, so let’s get started:

Some background to the complaint

Back in April the anti-Google alliance FairSearch (in this case only two of its members Microsoft and Nokia [Note: after I was done writing this post I learnt the news that Microsoft is acquiring Nokia’s mobile business] seem to have a real interest in the case) lodged a complaint with DG Comp alleging: (a) that by giving Android to device-makers for “free” Google engages in predatory conduct (making it difficult for rivals to recoup the investments made in developing competing mobile operating systems; and (b) that “phone makers who want to include must-have Google apps such as Maps, Youtube or Play are required to pre-load an entire suite of Google mobile services, and to give them prominent default placement on the phone”. Click here for FairSearch’s Press Release.

Rumor has it that the Commission recently sent out requests for information in relation to this complaint.

A business problem model?

In our view, this complaint can only be properly understood once one is aware about the existence of essentially 3 different business models for mobile operating systems (OSs). One is Apple’s vertically integrated model (iPhones run on Apple’s own iOS), another is Microsoft’s licensing model (OEM’s wishing to have smartphones running on Windows have to pay for a license), and the third is Android’s free software model (Android is distributed for free under a an open source license which enables licensees to do whatever they wish with the code), which has also been the model adopted by all new market entrants (Ubuntu, Firefox OS, Jolla’s Sailfish or Tizen –backed among others by Samsung and Intel-); Nokia’s Symbian (the market leader until 2011, now maintained by Accenture) was always and is also open source.

Manufacturers that are not vertically integrated at the OS level like Apple or Blackberry  had to find a competitive OS, there being, until now, essentially two reliable options: Microsoft’s Windows (which they had to pay for), and Android (which OEMs obtain on a free-license basis; even if they have to pay some royalties….to Microsoft! ; some even say that Microsoft makes more money from Android than from the Windows mobile OS). Not surprisingly, the market tends to favor the open source model and, quite logically, Microsoft doesn’t like that (you’ll recall that it also “had issues” with open source OS for PCs). It’s against this background that the complaint comes, in what some see as an attempt to reverse the course of the business model that is proving most successful.

On market power/dominance as a pre-requisite.

Every press-clip citing FairSearch’s allegations refer to the claim that Android enjoys a market share of 70%. This is a bit equivocal. In reality, the fact appears to be that 70% of smartphones (leaving tablets, led by Apple, aside on the assumption that they belong to a different market) shipped in the last quarter of 2012 had Android. And in reality, usage market shares appear to show a duopoly of iPhones and Android phones (see here or here) rather than an Android monopoly; moreover, revenue-baded market shares clearly tilt the balance in Apple’s favor (as explained here) [As to the future trend: Android is certainly doing spectacularly well lately, but we bet iPhone sales will increase once Apple abandons its (rather Steve Job’s) exclusive-good marketing strategy, which is very profitable (see previous hyperlink) but has costs in terms of market share. Android phones sell very well, among other reasons, because they are often subsidized by operators; iPhones on the other hand have traditionally been quite costly. The moment iPhones are cheaper Apple’s share should increase significantly] So, in reality, Android seems to face rather intense competition from Apple’s iOS, Windows, Blackberry; even its main customer (Samsung) has also developed its own OS Bada/Tizen (it also “multi-homes” by licensing Windows for some devices).

Against the background of what would appear to be a competitive smartphone market, the way to come up with a monopoly-like share would require 1) to distinguish separate markets for tablets (where Apple is the leader) and smartphones; and 2) to also take Apple and Blackberry out from the smartphone-only calculation by defining a relevant market for licensable mobile OSs, which intuitively seems a bit of a Procrustean move.

More importantly, forget about market shares for a second. The truly relevant question is: does Android enjoy significant market power? Can it profitably raise prices or decrease output or innovation?  Because Android is OpenSource/FreeSoftware (obtainable for free, its source code is entirely disclosed, it can be freely modified/”forked” [see here for “what the fork is forking”?] and appropriated by third parties: just look at Replicant, CyanogenMod, MIUI or at Amazons’ Kindle) we don’t see how Google would be able to exert market power in any way. Even Microsoft and Nokia could take Android and do what they please with it (they could even try to fork/improve it and compete with Google).

Actually, could we even say for sure that there is a “market” for licenseable OSs when all licenses (except Microsoft’s) are FreeSoftware licenses?

Moreover, and as regards innovation, there are very few markets with innovation cycles as fast as the one for smartphones’ OSs having featured a number of leaders in recent years: Palm, Symbian, iPhone, Blackberry and now Android. And this is because given the prevalence of FreeSoftware barriers to entry are extremely low. The moment someone comes up with a more innovative (better) product (including an improved version of Android unrelated to Google), Google would also lose its current lead.

But, for the sake of discussion, let’s assume that Android is dominant and look at the theories of harm, which bring up some interesting issues In our second post we’ll discuss the predatory pricing claims, and in our third post we’ll deal with the bundling aspects of the case.

Written by Alfonso Lamadrid

5 September 2013 at 1:35 pm

A Clash of Swords (The Intel Hearing, by Trevor Soames) (Part II)

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swords-crossed

Below is the second part of Trevor Soames‘ excellent, original and very detailed narration of the Intel Hearing held yesterday in Luxembourg. Chapter 1 deals with jurisdictional issues; Chapter 2 with rebates; Chapter 3 with procedural issues and Chapter 4 with fines. Enjoy!

Trevor

Prior to the commencement of proceeding the Court asked the parties to address their oral pleadings to three questions, as follows “Pursuant to Article 61(2) of the Rules of Procedure, the parties are requested to focus their pleadings on the Commission’s jurisdiction over the agreements concluded between Intel and Lenovo for 2006 and 2007. The parties are also requested to state their views regarding the impact of the judgment in Post Danmark (C-23/14) on the characterisation as loyalty rebates applied to agreements concluded by Intel and on the procedural handling of the interview conducted by the Commission with Mr D.”

The following report seeks to reflect fairly and as precisely as possible what the different parties said, dealing with each of the issues in turn (although, for the sake of brevity, the closing speeches are not recorded here).  As there is no Rapport d’Audience and as a result non-parties have no access to a summary of the pleadings, the oral argument provides an important insight into what each side has said to the Court in this very important case on a number of key issues.  Also, and importantly, the questions posed primarily to the Commission and the extensive Q&A by AG Wahl in particular perhaps gives some insight into the direction of travel he may be following in the preparation of his Opinion.  Will that Opinion provide a much hoped for clarification in this important area of competition law as well as a correction to the much-criticised judgment of the General Court in Intel?  Will AG Wahl’s Opinion have the same importance and impact of a number of his other Opinions in the competition law arena, such as in Cartes Bancaires.  We will have to wait and see.  And, of course, even after the AG opines we will have to wait to see the extent to which the CJEU follows his advice.

The report therefore seeks to provide a logically structured yet still verbatim account of yesterday’s hearing, with some commentary and observation contained in the final part (which will come tomorrow).

Read the rest of this entry »

Written by Alfonso Lamadrid

22 June 2016 at 4:58 pm

Posted in Uncategorized

On dawn raids and the ECJ’s Judgment in Deutsche Bahn (Case C-583/13 P)

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Last week the ECJ rendered its Judgment in Deutsche Bahn, a case that was already discussed in this blog at the time Advocate General Wahl issued its Opinion

For background on the case, comments on the Opinion, and interesting readers’ comments, see our previous post). Those already knowledgeable of the case and of the issues it raises can jump directly to the second half of the post, in which we discuss the ECJ’s ruling and give our views.

(This is a bit lengthy, but I bet you’ll find a couple of interesting points)

The facts. For those too lazy to read the Judgment or our prior comments, the case is, in a nutshell, about an inspection carried out without judicial authorization in the course of which the Commission found documents related to a possible different infringement in relation to which the Commission had received a prior complaint (apparently, and this is key, inspectors had also been briefed about that complaint, although the Commission says this was only for background purposes). Since the subject matter of that evidence was out of the scope of the inspection decision, the Commission adopted a second inspection decision on the fly [old/bad joke alert!]. Those as well as a third inspection decision were later appealed before the General Court.

[By the way, the substance of the case would have also been interesting. The first suspected infringement was about whether Deutsche Bahn could offer preferential treatment to its subsidiaries; does that sound familiar? The case was nevertheless eventually closed pursuant to commitments (see here) which, as it happens, closed the case but did not clarify the law].

The General Court’s Judgment (see here) unsurprisingly confirmed the Commission’s wide inspection powers, stating that there was no need for the Commission to obtain judicial authorisation prior to a raid and that documents discovered (genuinely) by accident which indicated a separate infringement could be used as evidence of that infringement, as long as the proper procedural requirements were respected.

AG Wahl’s Opinion nicely summarized the relevant case law on inspections, and essentially took the view that whereas the Commission shall have a certain leeway when it comes to inspection powers, those already ample powers are to be used prudently, and their misuse must be subject to effective judicial review.

Firstly, with regard to the alleged necessity of prior judicial authorization, Mr. Wahl considered that ex post judicial review on the part of EU Courts already offers an adequate level of protection of fundamental rights, and observed that in Delta Pekarny (a recent case in which the ECtHR ruled that fundamental rights were infringed) the ECtHR decision could be explained by the fact that the inspection decision was not subject to any—either ex ante or ex post—judicial review.  Secondly, on “surprise” discoveries, the AG took a different view from the General Court and took issue with the fact that the Commission had informed inspectors about the “second” infringement.  AG Wahl suspected the “only plausible explanation […] is that information on the DUSS suspected infringement was given to the Commission staff so that they could ‘keep their eyes peeled’ for evidence related to the second complaint” (para 77).  This means that the Commission effectively circumvented Art 20(4) of Reg 1/2003, either deliberately or through negligence. Whereas in Dow Benelux, the Court ruled that there is no reason why the Commission should disregard documents pointing to a different infringement if it was genuinely found by accident, AG Wahl noted in para. 82 that “[t]his is clearly not the type of conduct which the Court meant to allow under its Dow Benelux case-law. There is, in my view, no difference between a case in which the Commission launches an inspection without a valid decision and one in which the Commission proceeds on the basis of a valid decision, but searches for information relating to another investigation, not covered by that decision”.

The ECJ’s Judgment:

On whether a judicial authorization is necessary:

In a prelude of what is to come, the ECJ analyzes the case law of the ECtHR concerning the fundamental right to the inviolability of the home, observing (i) that it states expressly that absence of prior judicial authorization nay be counterbalanced by a post inspection review covering both questions of fact and of law; and (ii) that the EU legal system is premised on that basis, and that its legality under the ECtHR is ensured by the fact that EU Courts carry out an in-depth review of law and fact (unsurprisingly, the ECJ cites KME and Chalkor in support of this declaration). Judicial authorizations are only necessary, pursuant to Art. 20(6) and (7) of Regulation 1, when the undertaking opposes the inspection, which was not the case here.

The ECJ also goes on to explain why this system is also compliant with the fundamental right to effective judicial review, thus dismissing the applicant’s second ground of appeal.

On the “not-so surprise” findings:

The debate before the ECJ focused on whether the Commission had had valid reasons for telling its officials about the existence of suspicious concerning the second infringement prior to the inspection, as declared by the General Court, but as disputed by the applicant and the AG.

I didn’t take for granted that the ECJ would have dealt with the issue given that –as argued by the Commission- it could be characterized more like a question of fact than of law, and as you know issues of fact cannot be reviewed by the ECJ. Nonetheless, the ECJ states very very succinctly in para. 54 that DB “is arguing that the GC erred in law by holding that the Commission had valid reasons to tell its officials about the existence of suspicions concerning [the second infringement] before the first inspection”. The ECJ does not explain why the claim is really a legal and not a factual one (interestingly, the whole incident does not appear in the factual introduction to the Judgment…) but right away asserts the admissibility of the plea [perhaps to reassure some as to the appropriateness of the judicial review carried out by EU Courts in this area??? 😉 ] (to better understand this, we suggest you read our comments below).

As to the merits, the ECJ recalls the relevant case law in the field, emphasizes that the Commission can only search for documents coming within the scope of the subject-matter of the inspection as defined in the decision (para. 60), recalls that pursuant to Dow Benelux the Commission can start new investigations if it comes across new evidence genuinely by surprise (para 59) , but concludes –siding with the AG- that although inspectors need to be provided with background info about a case, “all that information must nevertheless relate solely to the subject-matter of the inspection ordered by the decision” (para. 62). The Court then concludes that the first inspection was vitiated by an irregularity “since the Commission’s agents, being previously in possession of information unrelated to the subject-matter of that inspection, proceeded to seize documents falling outside the scope of the inspection as circumscribed by the first decision” (para. 66). The ECJ decided to give itself final Judgment under Art. 61 of the Statute of the Court and annulled the second and third inspection decisions instead of sending the case back to the GC.

Our comments

The Judgment is solidly built on the case law of the ECtHR, which is abundantly cited, as well as on AG Wahl’s Opinion, which is also repeatedly cited. It is no surprise that procedural standards have progressively aligned  with those set out by the ECtHR, whose great influence in Luxembourg is already now undeniable and increasingly more visible, even pre-EU membership to the Convention.

-As we said in our previous post, we agree with the idea that it would be excessive to necessarily require prior judicial authorization, when ex post judicial review is available, but, in our view, the key issue is that of the quality of the judicial review itself. The ECJ actually cites case law of the ECtHR saying exactly that, “that the key issue is the intensity of the review covering all material matters of fact and law and providing an appropriate remedy if an activity found to be unlawful has taken place (…)” (para. 41 of the Judgment). The ECJ then assumes that since judicial review extends to both matters of law and fact, and includes the power to assess evidence and annul decisions, it is intense enough. In my view, however, scope and intensity are two different things, and the ECJ does not really talk about intensity. Admittedly, the intensity of judicial review is hard to assess, it is more a matter of attitude than of law (as I explained here; in Spanish, sorry…).

– With regard to the misconduct of the investigation:

(i) it may be just me, and I see how this is arguable, but I think it is possible that the Court may have blurred the lines between what is an issue of law and fact amenable to appeal before the ECJ as a way to appease concerns about the intensity of the review required by the ECtHR; if so, that would be an interesting development;

(ii) on the merits, the Judgment endorses a strict approach towards the Commission’s misuse of the very ample powers that it enjoys and that EU Courts recognize –and typically uphold- with no problem. The thing is that when one has such great powers, there is really no need to use shortcuts or engage into arguable practices; the Commission could have avoided this whole problem by adopting two different decisions, or by referring to the two suspected infringements in the same one. Why it did not do that is not easy to understand;

(iii) at the end of the day, in my view, the Judgment is more remarkable for its sensible approach and general message than for its practical consequences (not only was the situation at issue very specific but also I, for one, have first-hand recent experience confirming that the Commision had already learnt the lesson prior to the Judgment being rendered..)

P.S. I offer a couple of rounds of beers to anyone who can tell good inspection anecdotes in the comments to this post (hearsay is admitted) 🙂

Written by Alfonso Lamadrid

23 June 2015 at 6:38 pm

Posted in Case-Law

In no man’s land- Case T-355/13, easyJet

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Last Wednesday, 21st January, the General Court rendered an interesting Judgment in Case T-355/13, easyJet v Commission.

It is well-known that the European Commission has always enjoyed great discretion to reject, shelve or prioritize cases, traditionally under the widely used justification (sometimes pretext) of lack of Community/EU interest (as the case-law has, ever since Automec, acknowledged it may do). With the entry into force of Regulation 1/2003 the Commission was granted another two reasons to dismiss cases (not that it needed  them); pursuant to Article 13 it could now dispose of complaints where “one authority is dealing with the case” already (13(1)) or where a complaint “has already been dealt with by another competition authority” (13(2)).

easyJet v Commission concerns the latter scenario.

The facts in a nutshell

In 2008 easyJet lodged three complaints against Schiphol airport with the Netherlands Competition Authority, based on national legislation governing aviation law and on competition law. The authority rejected the complaints by relying on the laws governing aviation (said to be inspired on the competition rules) and by resorting to its priority policy, which enables it to pick the cases with which it deals.

In 2011 easyJet lodged an abuse of dominance complaint with the European Commission. It acknowledged it had lodged similar complaints in the Netherlands and explained that these had never been assessed on the merits.

After two years (so much for the best practices), in 2013, the Commission rejected the complaint arguing, inter alia, that a national competition authority had already dealt with it.

The Judgment

In Wednesday’s Judgment, the Court rules:

1) That the Commission is entitled to reject a complaint which has previously been rejected by a competition authority of a Member State on priority grounds even if the latter has not examined the merits of the case. The Court explicitly endorses an interpretation whereby what’s important is that the national authority has “formally”, however superficially, “reviewed” the complaint (see, e.g. recital 27 of the Judgment).

2) That the above is valid also where, as in the case at hand, the national competition authority rejected the complaint in the course of an investigation conducted under separate provisions of national law (aviation law in casu) “on condition that the review was conducted in the light of the rules of EU Competition law” (see in this regard para. 46 of the Judgment).

In sum, the General Court rules that when a national competition authority rejects a case without having examined its merits, and without having undertaken an analysis on the basis of the competition law rules this is enough to consider that the said authority has “dealt with” the case within the sense of Article 13(2) of the Regulation.

A few comments

It is also widely acknowledged that judicial review in these cases –also starting with Automec– has been rather lenient. At one point some –like me– saw a possible change of trend in CEAHR, but hopes were later dispelled by Protegé (see here for our comments). This Judgment fits within the classic very deferential stream of case law in this domain.

Whereas it’s true that the facts of the case are very specific, my first inclination is not to share the Court’s reasoning; if you see it differently I’d be happy to discuss.

– First of all, I wonder how this all fits with a stream of case-law (actually cited in this very same Judgment), according to which “where the institutions have a broad discretion, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance; those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case”. (In the same sense see also the often forgotten recitals 79 to 83 of Automec itself). Given that the EU Courts require –at least in theory- that the Commission examine carefully all the relevant aspects of a case prior to rejecting it out of lack of priority, why doesn’t the GC require the same from national competition authorities prior to concluding that they have “dealt” with a case within the sense of 13(2)? Moreover, doesn’t the case law require that the guarantees provided by EU Law be also applied by national bodies when applying EU provisions?

– Secondly, I’m not sure the Commission needed this favor in a domain in which it effectively already enjoyed almost unfettered discretion. Indeed, it didn’t need to invoke Art. 13(2); had it simply said the case lacked EU interest it would have got away with it

– The risk, in my view, is that after this Judgments authorities will be able to dispose of cases out of prioritization reasons without having examined first the relevant aspects of the case, at was required –at least formally- by EU case law, just because another authority chose to do just that before.

In a way, the Judgment might accordingly make it much easier for authorities to play hot potato. Wanna-be complainants would be in between, in no man’s land, with the frustrating feeling that no one wants to even cursorily look at their case.

– The Commission would probably reply to the above that national Courts are still well placed to deal with complaints, that they’re moreover under the obligation to examine the merits of cases and that they have wider powers (such as that of awarding damages). Query: I wonder how the experience of losing a case that the Commission thought was obvious before a Belgian Court (see here) may have altered the Institution’s perception as to how well placed judges are to deal with competition cases. I also think that the Commission often trusts judges to deal with cases that would need an EU-wide consistent solution, ideally from an experienced specialized agency. For instance, the Commission very recently rejected a complaint against the UEFA Fair Play Rules alleging that Belgian Courts were well placed to deal with it (see here; query: is that really a case that should be dealt with by a national Court instead of by the European Commission?)

Written by Alfonso Lamadrid

27 January 2015 at 4:24 pm

Recent Judgments of the EU Courts

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In the past few days there have been some remarkable competition-developments coming from EU Courts, the last of which took place only minutes ago in the Greek lignite case  (if you’re only interested in that one you can go directly to the bottom of the post). This is just a quick overview of some of those recent developments:

Some were anecdotal, such as President Barroso giving testimony as a witness before the General Court.

Others are relevant mainly for cartel geeks, such as the GC’s granting reductions of fines in 3 paraffin wax cartel related cases, in which it also (a) carried out a particularly detailed review of the exercise of decisive influence between a parent and its subsidiary (Sasol, available here); (b) observed a violation of the principle of equal treatment and, most unusually, found an infringement of the principle of proportionality in the calculation of the basic amount of a fine (but only due to the peculiar circumstance that the Commission had partly taken into accout the turnover of a company that had merged, in the course of the cartel, with another company participating in the infringement; see the Judgment in Esso, available here); and (c) shed some light on the assessment of the exercise of decisive influence in JV settings (in RWE, available here).

That challenges against the proportionality of fines imposed within the 10% limit are unlikely to be successful was confirmed by last week’s Judgment from the ECJ in the Telefónica case. Telefónica had challenged the GC’s Judgment upholding the controversial decision sanctioning it for a margin squeeze abuse. The ECJ’s Judgment contains nothing of particular interest (aside from an interesting explanation of why the General Court’s review is fully compatible with the requirements stemming from the ECHR). The case will mostly be remembered because of Advocate General’s Wathelet’s Opinion both on the issue of proportionality as well as on the qualities of the appeal lodged by Telefónica, which we’re told broke a record as the lenghtiest in the history of the ECJ. (For those of you who are wondering whether limitations on the number of pages didn’t apply, you should know that there’s a way to bypass them, which I won’t explain here in the interest of the efficient use of Court’s resources…).

And, finally, most interesting news came from Luxembourg minutes ago, as the ECJ has annulled the General Court’s Judgment in the Greek lignite case concerning the joint application of Articles 106 and 102 TFEU. As you may recall, some time ago we held a most interesting ménage à trois debate on the GC’s Judgment with Marixenia Davilla (see here), José Luis Buendía (see here) and Makis Komninos (see here). The ECJ and the Advocate General have followed the approach that José Luis had forecasted (the Mr. 106 nickname has a justification).

The Judgment is much more important than many may realize at first sight. The main issues raised by the case are covered in our previous posts, so I refer you to those. Observe only that the Judgment goes pretty far -in the right direction, I would argue- in ruling (in para 46) that “[a]ll that is necessary is for the Commission to identify a potential or actual anti‑competitive consequence liable to result from the State measure at issue. Such an infringement may thus be established where the State measures at issue affect the structure of the market by creating unequal conditions of competition between companies, by allowing the public undertaking or the undertaking which was granted special or exclusive rights to maintain (for example by hindering new entrants to the market), strengthen or extend its dominant position over another market, thereby restricting competition, without it being necessary to prove the existence of actual abuse“.

The Judgment would insuflate some life to Art. 106 which, as I said last week, has a tremendous potential which still today remains largely unused. This would nonetheless largely depend on politics at the incoming Commission and on the Commission’s discretion, and, judging by history, I’m not opimistic. As the GC reminded us with another Order last month declaring an appeal inadmissible (here), “the Commission’s refusal to act under Article 106(3) TFEU following the filing of a complaint by an individual against a Member State does not constitute a challengeable act“.  This ruling is based on the max.mobil case-law, which I’ve always seen as unfortunate and in need of repeal.

Written by Alfonso Lamadrid

17 July 2014 at 11:41 am

Déjà vu? Microsoft announces Skype’s integration in Windows

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On 15 August Microsoft announced on a blog post that Skype will come installed by default in Windows 8.1, and that it will be prominently displayed in its “Start” Menu (see Skype-right from (the) “Start”)

The news appears to have surprised many, who have publicly wondered whether Microsoft is actively looking for antitrust trouble (see notably here, here, or here).

And, of course, given my involvement in Skype-related competition matters, when I returned from my summer holidays I had a good number of emails from students, journalists, lawyers, friends and even family who were sending me the news and asking for an opinion. Since it would not be practical to reply to all those emails separately, I have decided to do it here.

[A disclaimer first: as frequent readers of this blog know I represent the two companies who chose to challenge the Commission’s decision authorizing the Microsoft/Skype deal. This means that I certainly am not an impartial observer, but it does not mean that the views set out here are to be attributed to my clients or my firm; they are exclusively mine. These views also refer to a conduct which is post-decision and therefore not the subject of the pending case].

My first comment is:  Did anyone really not see this coming?

During the past few months Microsoft has pervasively integrated Skype with most of its products. Skype is now closely integrated with, for instance, Office, Office 365, Outlook, Outlook.com (formerly Hotmail), Windows Phone 8, Xbox, Lync (as announced only minutes after our Court hearing ended), and it was only a matter of time that it would come pre-installed in Windows. In the meanwhile, Skype’s only meaningful competitor in the consumer world (WindowsLiveMessenger) has disappeared and its users have been migrated to Skype.  As a result, Skype’s user base has skyrocketed since the merger (going from approx. 150 to over 300 million unique monthly users), and rapidly growing.

[By the way, all this obviously voluntarily enhances the already powerful network effects at play in the only communication markets where interconnection is not mandatory, with obvious consequences]

Microsoft’s decision to bundle Skype pervasively with other Microsoft products, including – as just announced – Windows, may actually have come as a surprise to the European Commission. In its Microsoft/Skype decision, the Commission concluded that Microsoft would not have the incentive to tie Skype to other Microsoft “leading/dominant” products (e.g., para 155). No kidding.

Now let’s cut to the chase, can the integration of an application with a dominant operating system run afoul of the competition rules?

The European Commission itself has held various seemingly contradictory views over time.  Microsoft, too, appears to have opposite views on this question. Let me explain this:

In the light of the spirit and the letter of the Microsoft’s 2004 infringement decision, the 2007 Microsoft Judgment, the 2009 Microsoft commitment decision, Skype’s integration with Windows would likely raise some antitrust flags (notably concerning the market for video calls, given that currently over 3 out of 4 video calls are made using PCs). As you know, in all of those precedents, the Commission and the General Court observed that pre-installation resulted in an unparalleled distributional advantage that could not be offset by the downloading of competing applications.

The Microsoft/Skype 2011 decision, however, arrived at exactly the opposite conclusion. The comments voiced out in the past few days in the media seem to have overlooked the fact that the Microsoft/Skype Decision – despite denying Microsoft’s incentives to tie Skype to its products – did actually address the possibility that Skype could be tied to Windows, and that it ruled out any competition concerns. The Decision acknowledged that pre-merger Skype was already present on approximately 60% of Windows PCs pursuant to agreements with OEMs, but alleged that there was data -not cited- showing that in practice pre-installation resulted only in a small share of Skype users (para 162). In other words, the Commission considered that pre-installation does not offer that much of a competitive advantage because users could easily and freely download Skype and other competing applications.

Query: does anyone see any inconsistencies between the Commission’s approaches to downloading? The Commission is certainly entitled to change approaches, but since the reasons for this change were not set out in the Decision, it’s difficult to identify with clarity what the Commission’s current approach to pre-installation vs. downloading is.

If you want to play more “find the differences”, try comparing the Commission’s prospective analyses and approaches to technical tying/bundling (and, for that matter, to interoperability degradations too) in Intel/McAfee (2011) and Microsoft/Skype (2011).

And whereas the Commission’s shifting viewpoints are remarkable, what is more striking is that Microsoft is, as of today, advocating two opposite legal standards, one for itself and another for Google:

As you may remember, back in April the FairSearch coalition (led in this case by Microsoft and Nokia) lodged a complaint against Google arguing that Google is abusing Android’s alleged dominance in the market for mobile operating systems by bundling certain “core Apps” with its operating system.

[The way I see it, in the case of Android the dominance and the bundlling are much more doubttful, but that is another story, and one interesting enough -I’ve just realized- to deserve some specific comments in the coming days].

So, in one case Microsoft is claiming that the pre-installation of Google apps on Android phones constitutes an abuse of a dominant position in the market for mobile OSs (no matter if users are free to download any competing application; btw, Skype for Android has no less than 100 million users!), but, at the same time, having Skype pre-installed in the dominant PC OS poses no problem (precisely because users are free to download other applications).

Anyone else sees any issue conflict?

Written by Alfonso Lamadrid

2 September 2013 at 4:56 pm

Cases that never will be (I) – Hynix (Case T-148/10)

with 2 comments

Last week one of the most knowledgeable people in the EU competition law world (Commission official whose name I can’t disclose) tipped me to a new series of blog posts:

His words were “someone should one day write on a blog the story of competition cases that could have had a significant impact on the law had they not been withdrawn”. Since the number of competition law bloggers is not that high (even though it’s rapidly increasing…), and since I was the addressee of the message, I sort of got the point.

Actually, I very much like the idea of writing about cases that never were or, rather, that never will be.

There are a few candidate cases to be discussed; a non-exhaustive tentative list of non-cases could include: Siderca, Chi Mei, Suez-Environment, Formula One, Oulmers, BIC Deutschland, Balog or Van der Weerd. [Additional suggestions would be welcome].

Today we’ll start with Hynix (Rambus), a case in which the hearing was scheduled for 2 July but that was withdrawn a few days ago following a settlement.

The Judgment that will never come to light in this case would have constituted a most important precedent in relation to some important general enforcement issues, as well as in relation to an eventual judicial review of the current investigations concerning Google or Samsung.

A bit of background:

In 2002 Hynix filed a complaint alleging that Rambus had engaged in deceptive conduct in a standard setting procedure in relation to DRAM chips by not disclosing the existence of the patents and patent applications which it later claimed were relevant to the adopted standard, and that it had later charged excessive royalties for the use of those patents (i.e. royalties higher than those that it would have been able to claim had it not engaged in deceptive conduct). This is what is generally referred to as “patent ambush”.

The case was interesting because the deceptive conduct at issue had made Rambus acquire dominance (it preceded dominance), and the charging of high royalties could be regarded as the natural consequence of such dominance. Given that EU law does not target “monopolization” practices (those use to achieve dominance), the Commission had attempted to close this enforcement gap by targeting exploitative pricing under Art. 102 under the argument that dominance had been unlawfully attained. This was a brave and controversial move on the part of the Commission.

On 27 July 2007 the Commission adopted a statement of objections setting out its concerns. Rambus responded to the SO and a hearing was held.

Almost two years later, however, Rambus submitted preliminary commitments, those were later market-tested, revised, and eventually made binding on December 2009 (in a nutshell, Rambus committed (i) not to charge royalties for the two standards adopted while Rambus engaged in the deceptive conduct; (ii) to set a maximum royalty of 1,5% for the later generation of standards and to offer thus maximum rate to all market participants). (Note that the commitments concerned only future payments, not those already made).

As you know, in a case like this (or in a case like Google’s), once the Commission accepts commitments it must (a) adopt an Article 9 decision making them binding; and (b) adopt a decision rejecting any complaints stating that there are no longer grounds for action.

Hynix appealed both of these decisions.

In essence, Hynix argued that the Commission violated Article 9 of Regulation 1/2003 by choosing the procedure envisaged in that article where its concerns related to a serious violation of Art. 102.

In its SO, the Commission had envisaged a finding that the charging by Rambus of capped royalties is incompatible with Article 102 (82 back then). However, the corollary of the commitment decision was to make royalty caps binding, thus endorsing their legality.

The Judgment that will never on this case would have shed light on some of the hottest current topics in EU competition law (abuse of dominance in high-tech sector, misuse of patents, the circumstances in which the Commission can or cannot adopt commitment decisions…).  In the past we have devoted lots of ink pixels to discussing these issues, and it’s a pity for the law that questions like the following will, for the time being, remain unaddressed:

 What constitutes an abusive practice with respect to standardization, in particular so far as concerns patent ambushing?

Were commitments in the form of future royalty caps sufficient to eradicate the competitive problems found by the Commission?

What guiding principles (beyond Alrosa) are to be taken into account when assessing the appropriateness and adequacy of commitments? 

Can the Commission address what it had perceived as a serious violation by means of a commitments decision? In that context, may the Commission adopt remedies which are only prospective in nature? Is the Commission entitled to have recourse to a commitment (Article 9) decision after having adopted a Statement of Objections? And in this case, can a Statement of Objections be considered as a valid “preliminary assessment” for the purposes of Art. 9 of Regulation 1/2003?

Written by Alfonso Lamadrid

21 June 2013 at 10:00 am

Enforcement Gap?

with 5 comments

While in Sorrento for the first conference of the Associazone Antitrust Italiana, I learned an interesting fact about Italian competition law. For a few years now, the Italian Antitrust Authority has apparently shifted the quasi-entirety of its enforcement resources to the investigation of unfair trading practices. As a result,  little, if any, enforcement initiatives are undertaken on the basis of the Italian competition rules. The daily business of Italian competition lawyers has thus changed dramatically, and many have had to learn a new discipline.

Interestingly, the rationale for this strange enforcement prioritization agenda has to do with media exposure. Because unfair trading practices cases require little resources, the competition authority can investigate and decide many of them and thus appears frequently in the press. In contrast, antitrust cases are more costly, lengthy and uncertain. Their political, social, and media benefits are much more limited.

Now, I wonder if the Italian CA, and more generally multi-function CAs, can lawfully decide to renege on competition enforcement, and allocate their resources to other areas (e.g., consumer protection, unfair trading practices, etc.). After all, an enforcement agenda of this kind undermines the principle of effectiveness of Article 101 and 102 TFEU enshrined in Article 35(1) of Regulation 1/2003. Such a practice creates an enforcement gap on Italian territory which to me, is incompatible with the twin logic of decentralized & homogeneous enforcement which blows on the EU competition system.  Just think for a minute to the situation of a French firm facing exclusionary tactics from a dominant Italian incumbent. Faced with a CA reluctant to open proceedings, the remedies open to the French firm are drastically limited.

Of course, the next question is: what can firms do to induce the Italian CA to revisit its enforcement agenda? Besides asking DG COMP to put pressure on Italian officials, the most obvious course of action involves a complaint before the Commission against Italy under Article 258 TFEU for failure to comply with EU law.

The first conference of the Associazone Antitrust Italiana was a great success with approximately 150 participants. I attach my slides and the text of my speech.

Oral Intervention – Speaking Notes – N Petit

Slides NP – Judicial Review in European Union Competition Law – Final

Written by Nicolas Petit

23 May 2011 at 11:58 pm

Posted in Events

Competition Law and Sport (VI) The NFL Lockout

with one comment

Our “competition law and sport” series (see posts I, II, III, IV, and V) was born out of our belief that the application of competition law to the world of sports has a tremendous potential that still today remains to a great extent unexplored in the EU. As I´ve said before, not only are sports-related cases some of the most visible ones at the EU level (for the general public Bosman is very likely the best known ECJ Judgment of all times), but given the peculiar features of the activities and markets at stake they also raise particularly interesting issues that push competition law outside of its comfort area, some of which we´ve previously discussed here.

In the US they were much quicker than us to realize that. In fact, the application of the antitrust laws has shaped much of the current organization of professional sport.  A good and very hot illustration of this influence is the controversy surrounding the NFL lock out, which was recently challenged on antitrust grounds by several NFL players, including superstars Tom Brady, Peyton Manning and Drew Brees (Read their complaint here). The players also asked for an injunction to freeze the lock out that was finally granted last Monday.

Background and issues in a nutshell: the activities of all major leagues have enjoyed until now some degree of inmunity to the application of antitrust laws. The clearest example is baseball, which enjoys a controverted antitrust exemption that was ratified by the Supreme Court in Flood v Kuhn (1972) on the basis of a really absurd reasoning that put a curious interpretation of stare decisis before sound legal reasoning and common sense. Other sports have not been treated with so much deference, and so they have resorted to collective bargaining so as to escape the application of the Sherman Act. That was the case of the NFL, which, until now, had always negotiated all sorts of issues with the players union (NFLPA).

On March 11th, and in light of the unlikelihood of reaching a satisfactory deal on how to divvy up the $ 9.3 billion that the NFL makes, franchise owners  announced a lock out (which, amongst others, implies no salary, no hiring, and no access to training facilities) (btw, it seems that the NFL´s tactics are somehow similar, and coincidental in time, to those of the Republican party..) and players decided to decertify their union and cease the collective bargaining process in order to deactivate the non-statutory exemption and lodge an antitrust complaint (see the link above for the content of the complaint).

The complaint challenges the compatibility with Section 1 of the Sherman Act some of the NFL´s basic arrangements, namely those related to salary caps, drafting of new players and free agent restraints, as well as of the lock out itself.

On Monday, Judge Nelson (District Court for the District of Minnesota)  issued an order granting an injunction which freezes the lock out (finding that players/plaintiffs have a fair chance of prevailing and that absent the injuction they would suffer irreparable harm). The order, however, does not deal with the merits of most of the players´claims, and rather states that “[r]esolution of the issue of whether the exemption precludes relief on the NFL’s various Player restraints must await another day”.  (Click here to read the order).

If the litigation were to reach an outcome in the form of an Opinion on the merits (which is not so obvious in light of the White v NFL precedent and of the ongoing court-ordered mediation talks) that would mean that a court would undertake a competitive assessment of several practices that have never carefully scrutinized so far. This could most certainly have an impact on the debate surrounding the possible implementation of salary caps and other similar arrangements in European sports and particularly on their assessment under EU competition rules. We´ll deal with those in future posts.

Written by Alfonso Lamadrid

28 April 2011 at 10:29 pm