Author Archive
Open Academic Position in IP and Innovation Law – University of Liege School of Law
Come work with me :)!
The University of Liege School of Law and Political Science is opening a part time academic position – 65% of a FTE – in the field of Innovation and Intellectual Property Rights. Appointments will be effective as of 1st October 2013.
This position may be split into two academic positions, and give rise to two distinct appointments (respectively covering a 50% part time position and a 15% part time position).
This appointment is for an initial duration of 5 years (max), and may subsequently lead to a definitive appointment (at the earliest after 3 years).
The 65% part time academic position covers:
Next GCLC Lunch Talk
At the GCLC, we have just scheduled a promising lunch talk on the Commission’s UPS/TNT Decision on 4 April.
Our speakers are Stephan Simon (DG COMP), Winfred Knibbeler (Freshfields Bruckhaus Deringer) and Andrea Lofaro (RBB Economics).
For registation see here.
For more, see Andrea’s excellent RBB Brief hereafter: RBB_B41_Brief_V3.
Learning curve
Random thoughts following yesterday’s discussion:
- Google translate is an ordoliberal software
- Or … the systematic removal of “effect” from Treaty translations may be part of the settlement currently discussed with DG COMP (in a bid to please the ordos within the Commission)
- The bad news about inconsistencies in the various language versions of the horizontal cooperation guidelines and of the guidance paper? EU law not applied uniformly.
- The good news? Entitles to perform natural experiments, and test in real life the economic impact of distinct legal standards
Lost in Translation
[Please read this post with caution] Heard from a seasoned German-speaking Member of the Court of justice of the EU.
The fuzz about the object-effect dichotomy that has kept generations of EU competition lawyers busy would be a moot issue. We dumd: last year, at the GCLC, we devoted a full conference and book to this issue.
This is because this distinction arguably does not exist [following Hans, Petra and Rainer’s clarifications, I suspect this eminent person meant is “not really relevant”] in the German-language version of the Treaties. Hence the Court’s reluctance to consider effects in antitrust cases.
Puzzled by this assertion, I ran my investigation. At this juncture, I must mention that I am a complete German illiterate.
So here we go: I first consulted the wording of Article 101(1) of the Treaty in German:
“(1) Mit dem Binnenmarkt unvereinbar und verboten sind alle Vereinbarungen zwischen Unternehmen, Beschlüsse von Unternehmensvereinigungen und aufeinander abgestimmte Verhaltensweisen, welche den Handel zwischen Mitgliedstaaten zu beeinträchtigen geeignet sind und eine Verhinderung, Einschränkung oder Verfälschung des Wettbewerbs innerhalb des Binnenmarkts bezwecken oder bewirken, insbesondere”
Then I asked Google to translate this text to English:
“(1) The internal market incompatible and all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object the prevention, restriction or distortion of competition within the internal market and in particular those”
No trace of the word “effect“.
I did the same in French:
“(1) Le marché intérieur incompatibles et interdits tous accords entre entreprises, toutes décisions d’associations d’entreprises et toutes pratiques concertées qui sont susceptibles d’affecter le commerce entre États membres et qui ont pour objet d’empêcher, restreindre ou de fausser la concurrence au sein du marché intérieur et en particulier ceux”
Again, no trace of the word “effect“.
A weird finding. All the more so given that the official Treaty translation explicitly talks of “effect“.
So here I am, pondering whether I am making this up or if, as this distinguished Court Member hinted, there is a linguistic reason for the absence of serious effects analysis in the Court’s case-law.
Now, if the other language versions of the Treaty talk of “effect“, which version of the Treaty is the right one?
Gee, me completely lost in translation.
PS1: On this, I’d advise Google to manipulate its translation service, and reintroduce the “effect” word in all Treaty translations.
See below for more evidence (a print of my screen).
Antitrust History
A lot has been written on the history of the EU antitrust rules.
Those familiar with Jean Monnet’s Memoirs know that the wording of EU competition law owes a lot to the drafting skills of George Ball.
But I personnally did not know that the Brussels office of Cleary, the oft-cited n°1 law firm on the Brussels market:
was established in 1960 as a direct consequence of the close relationship between Jean Monnet and former Under-Secretary of State, George Ball, one of the firm’s founding partners and legal advisor to Jean Monnet on the implementation of the Marshall Plan and the drafting of the Treaties of the European Communities.
Caveat 1: this is no advertisement for Cleary.
Caveat 2: this is not another rant at conflicts of interests.
An Unprecedented Fine
There’s a big storm coming.
Tomorrow, the Commission will slap yet another stratospheric fine against Microsoft.
We’re told that Microsoft did not implement the “browser choice” remedy negotiated with the Commission in 2009.
Worst: this is apparently due to an internal communication failure.
Alfonso blogged about this a while ago (meanwhile disclosing his core musical tastes).
Because the Commission understandably wants compliance but may be reluctant to micro-monitor the implementation of settlements, the fine will likely be high.
But how high?
WE readings
Some propaganda:
1. “Ethique et conflits d’intérêt en droit européen de la concurrence”: A 1,5 pager, a little controversial, and for good reason : upon inquiry, there is no standard ex post “recusation” procedure in EU competition proceedings. So how to dismiss a conflicted decision maker? And before this, how to know he is conflicted? Those weird findings, coupled with other recent developments (the ongoing revolving doors investigations of the Ombudsman) prompted further research on ethical rules in EU competition law. Will likely dig deeper in the upcoming months. An English translation of this edito is in the pipeline, and due to appear in ECLR…
2. “Industrial Policy and Competition Enforcement: Is There, Could There and Should There Be a Nexus?“: co-authored with N. Neyrinck. This paper makes a number of novel points. One of them is that under current legal standards, some transactions (e.g. mergers) that are deemed compatible when they originate from EU-owned firms, may be forbidden when they originate from non EU-owned firms. The explainer: efficiencies generated by EU-owned firms benefit more directly to EU consumers than efficiencies arising from non EU-owned firms. Another point of the paper is that the EU industrial policy agenda (and all the thinking that went into this) should inform DG COMP’s priority setting policy. This paper was presented at the 2012 GCLC annual conference and will be published as part of the conference proceedings.
3. “New Challenges for 21st Century Competition Authorities“: You guys know this one. A modest effort to identify some of the hottest issues in contemporary competition enforcement. The paper does not pursue great academic ambitions, but make a number of original points (on the use and abuse of settlements/commitments in particular). It will be published in a forthcoming issue of the Common Law Review and was presented at a conference in Hong Kong in October 2012.
Post Danmark – More than just One Case
Our friend Christian Bergqvist has offered us a most interesting post on the national sequel of the CJEU judgment in Post Danmark. Christian is an associated professor at the University of Copenhagen/Faculty of Law. He holds a PhD in competition law and has specialized in particular on dominant firm conduct and the interplay of Article 102 TFEU and sector specific regulation. For more, see here.
PS: for a good reminder of the ruling and of its implications for future competition policy, I advise the reading of the excellent piece of E. Rousseva and M. Marquis (which suggests (in my view rightly) that the Court eventually embraced the Commission’s approach set forth in the Guidance paper).
About a week ago, on Friday 15 February, the Danish Supreme Court delivered its ruling in Post Danmark vs Konkurrenceraadet. This judgment settles the national case behind the (fabulous) 2012 CJEU ruling Post Danmark (C-209/10). Given the strong pronouncements made by the CJEU it does not come as a surprise that the Danish Supreme Court eventually decided to quash the challenged (national) decision on grounds of an incorrect material test. Rather than concluding that discriminatory conduct was per se able to exclude a competitor, the Danish Competition and Consumer Authority, should have conducted an “equally efficient competitor test”, or something close (the latter being my interpretation). Absent this, nothing conclusive could be decided on the existence of an abuse.
The ruling of the Supreme Court leaves little space for ambiguity. Yet, the final word might not have been said on the matter. First, the Danish Competition and Consumer Authority can at least theoretically reopen the case and conduct a proper analysis. This, however, looks quite unlikely. Second, back in 2009, the alleged “victim” of the exclusionary behavior (Forbruger-Kontakt) had successfully filed an action for damages, and was subsequentely awarded DKK 75 million (app. EUR 10 million). Unsurprisingly, Post Danmark has appealed this decision to the Danish Supreme Court, which is yet to decide on the matter.
This short post seeks to offer some thoughts on this issue. Prior to this, I provide some background information on the initial EU case.
Avoiding Judicial Review + Random thoughts on Setbacks and Victories in Court
During his presentation last week, Alfonso shed some light on why the Commission was so eager to settle abuse cases in the high tech sector. In brief, he argued that the Commission uses commitments decisions because it does not know how to handle those cases under the current Article 102 TFEU standards. Settlements arguably offer a convenient exit route, because remedies are brought to the table, and the Commission avoids the risks of annulment before the Court.
Similarly, in a comment a few weeks ago, Adrian made the following observation:
“Isn’t it because the EC shies herself away from building a rather complex novel case by reaching the compromise of commitments? And isn’t it the trend lately that the EC is less prone to take the risks of probing unwalked cases and prefers to plea bargain?!”
I quite like this judicial avoidance theory, not least because it also has a strong managerial angle. When DG COMP is taken to Court, the Legal Service normally deals with the case. But DG COMP is not entirely out of the picture. The case-handlers must indeed brief the agents of the Legal Service, and assist them throughout the proceedings. In other words, important human resources from DG COMP are diverted from case-handling to litigation. And this is somewhat disruptive from an enforcement perspective.
Now, this brings me to the substance of this post: we often are prompt to talk of cases as victories or failures either for the Commission or for the parties. On this blog, for instance, we have often written that the Commission had won (or lost, as the case may – more rarely – be) cases in Court. Whilst this language is clearly inappropriate from a formal standpoint – annulment proceedings are not trials against the Commission, but against decisions (“un procès à un acte” in the words of French administrative law) – it also shrouds that the Commission may “gain” when its decisions are set aside. In hindsight, for instance, the Airtours v. Commission case can be interpreted as a big win for the Commission, because it helped those in the Commission willing to adopt refined legal tools for merger analysis (amongst other things, the Guidelines on horizontal mergers) and it ushered in an unprecedented internal administrative reform that was praised by the whole antitrust community.
This reflection sprung to mind today when I read again the General Court’s judgment in T-427/08, CEAHR v. Commission. In this case, the Court quashed a Commission decision that had rejected a complaint out of market definition arguments. In essence, the Commission was arguing that the market for spare parts of luxury watches could be conflated with the primary market for luxury watches, and that all spare parts for luxury watches belonged to the same relevant market regardless of the brand. The General Court disagreed (rightly in my view), and forced the Commission to investigate the complaint. The General Court held that the Commission had not proven that a price increase in the secondary market would have led consumers (i) to switch to other secondary products; and (ii) to switch to other primary products. I note here in passing that contrary to routine decisional practice, the Commission was supporting here a very wide market definition.
Interestingly, the CEAHR v. Commission judgment – which had been at the time described as a big setback for the Commission (including by myself) – has served the Commission to an unexpected extent, providing it with useful ammunition to craft new abuse of dominance cases. The best proof of this is perhaps the IBM Mainframe case. In this decision, the Commission relied extensively on CEAHR v. Commission to suspect IBM of dominance on the markets for “inputs needed in order to provide maintenance services to IBM mainframes which cannot be sourced outside IBM” (see §24 of the Decision).
The upshot of the above point is that behind the Commission’s judicial misfortune, lurk possible advances for EU competition law, including some that benefit to the Commission itself. This, in turn, should prompt us to stop talking of cases in terms of victories and defeats. Otherwise, as mentioned by Cedric Argenton last week at the same lunch talk, we will witness less and less standard Article 7 decisions, and a propagation of Article 9 decisions which insulate the Commission from judicial review and yield only little, if no, guidance on the substance of the law.
Revolving doors (a markup)
Below in CAPS my markup on Alphonso’s post:
Nico and I have come up with a way of duplicating posts out of one piece of news; one of us writes something and then the other disagrees 
[WE NOW TRIPLICATE MATE]
Last Tuesday Nico wrote a post titled “Revolving doors” in which he expresses the concern that “the cumulative effect of appointing previous Commission officials as judges, plus the very many référendaires who have spent some time in the EU administration may give rise to a pro-Commission bias at the Court“.
[I was actually in Luxembourg for a Court hearing -my first one in the front lawyer’s row- when Nico wrote it, but I’ll tell you about that some other time].
Without entering into the debate on whether there is or there isn’t too much of a pro-Commission bias at the Court (in my view, there is the same deference towards the public authority that we find in any European administrative system – in the US, on the contrary, that deference is less visible-), I don’t at all share Nico’s concern [CHECK CONSISTENCY: YOU DONT WANT TO ENTER INTO THE DEBATE, YET YOU EXPRESS DISAGREEMENT. WOULD SUGGEST DELETING THE INITIAL CAVEAT].
Assuming that there was such bias [YOU DEPART FROM MY INITIAL ASSUMPTION, WHICH POSTULATED THE ABSENCE OF BIAS, YET ANTICIPATED A RISK OF BIAS], I would argue that it has nothing to do with former Commission officials becoming members of the Court: [CORRECT. TO BE MORE ACCURATE, THIS POSSIBLE BIAS HAS NOT ONLY TO DO WITH COMMISSION OFFICIALS BECOMING JUDGES AT THE COURT, BUT ALSO IS DUE TO SEVERAL OTHER FEATURES OF THE COURTS SYSTEM. A FREE PERSONAL SAMPLE: PRESUMPTION OF LEGALITY OF COMMISSION DECISION, DOCTRINE OF MARGINAL REVIEW OVER COMMISSION SUBSTANTIVE ANALYSIS, REPEATED APPEARANCE OF SPECIALIZED LEGAL SERVICE AGENTS ON BEHALF OF THE COMMISSION (AS COMPARED TO HIGH TURNOVER OF LAWYERS REPRESENTING CLIENTS IN COURT), INEQUALITY OF APPLICANTS CHALLENGING A X-HUNDRED PAGES DECISION UNDER A 50 PAGES CAP ON SUBMISSIONS; SYSTEMATIC RELIANCE OF THE COMMISSION (READ THE LEGAL SERVICE) ON FORMS-BASED DEFENSE ARGUMENTS, ETC.]
Only two current Judges at the GC have previously worked at the Commission: Marc van der Woude (who was also a private practitioner, which should offset any bias; ask anyone in the business their opinion on him and you won’t hear a single negative one), and Guido Berardis (of whom I’ve also heard very positive things) [THE ISSUE IS NOT ABOUT WHAT WE PERSONALLY AND SUBJECTIVELY THINK ABOUT THEM; I TOO HOLD THOSE JUDGES IN GREAT ADMIRATION. IT IS ABOUT COGNITIVE PROXIMITY TO CERTAIN IDEAS, OBJECTIVE QUIRKS AND BIASES, WHICH ARE HUMAN AND AFFECT ALL OF US, INCLUDING THOSE SEEN AS THE BEST PROFESSIONALS. THOSE THINGS HAVE BEEN ADUNDANTLY DOCUMENTED BY BEHAVIORAL ECONOMISTS]. 2 out of 27 (3 if the Committee gives the green light to Kreuschitz, which it undoubtedly should) does not appear to be an unreasonable proportion [UNLESS YOU PLEAD BEFORE A 3 JUDGES CHAMBER – THE STANDARD FORMAT FOR A GENERAL COURT CHAMBER – AND ALL THREE SIT IN IT]. Furthermore, all three of them were part of the Legal Service, which means that an important aspect of their work -aside from pleading- consisted in identifying flaws in the Commission’s work [NOT SURE THIS IS YOUR BEST SHOT. LET ME EXPLAIN. WHEN A DECISION IS APPEALED, THE LEGAL SERVICE HAS ALREADY CONCLUDED TO THE ABSENCE OF FLAWS [OTHERWISE THE DECISION WOULD NOT HAVE BEEN ADOPTED]. OUR JUDGES WHO IN THE PAST WORKED FOR THE LEGAL SERVICE WILL THUS LIKELY BE TEMPTED TO ASSUME THAT THE DECISION IS LAWFUL, AND DEFER TO THEIR FORMER COLLEAGUES ANALYSIS. WHY REDO THE ANALYSIS OF THEIR ***** PEERS? ].
If you ask me (and part of my job is to beat the Commission in Court), the problem lies not in Judge’s previous professional experience, but rather in Judges being appointed for political reasons other than their knowledge of the law (see here). And people who know about EU law are generally -there are a few exceptions- either academics (most of whom also have defined pro or anti Commission biases), practitioners (we may have the opposite bias, plus we’re too competition law oriented), and Commission officials.
In sum, I would argue that we need Judges that know their stuff inside out, no matter their nationality or whether they are national judges, academics, ex-Commission officials or former practitioners. [AGREED. I WOULD KEEP THE SENTENCE AS SUCH, AND SIMPLY ADD “IMPARTIAL” AT THE BEGINNING: “IN SUM, I WOULD ARGUE THAT WE NEED IMPARTIAL JUDGES THAT KNOW THEIR STUFF INSIDE OUT”]
A FEW OTHER COMMENTS/REMARKS:
YOU DO NOT ADDRESS THE REFERENDAIRES;
IN MOST MODERN SYSTEMS OF LAW, THERE IS A REAL SEPARATION BETWEEN PROSECUTORS AND JUDGES, AND FOR GOOD REASON;
THE QUESTION IS NOT SO MUCH ABOUT WHETHER THERE IS OR NOT A BIAS. WHEN IT COMES TO JUSTICE, THE MERE SUSPICION OF A POSSIBLE BIAS IS INTOLERABLE. JUSTICE IS THE LAST RESORT REMEDY AGAINST RISKS OF ARBITRARINESS. IT THUS MUST COMPLY WITH THE HIGHEST POSSIBLE STANDARDS OF IMPARTIALITY. PUT SIMPLY, IMPARTIAL JUSTICE MUST NOT ONLY BE DONE, IT MUST ALSO BE SEEN TO BE DONE.
Chillin'Competition 