Author Archive
Show must go on
The very existence of this post is proof that yesterday’s announcement was a scam.
The idea of this post germinated a year ago. Alfonso and I were pondering about the actual impact on the blog, and how would people react if we ever shut it. We thought we should one day announce that we had a fight (we mean a real one, after a heavy night out), and that the blog would close. For a whole bunch of reasons, we eventually never published this post.
Yesterday, it crossed my mind that the time was ripe for a post like this.
First, we had been silent for 5 days.
Second, we posted nothing on 1 April.
Third, and more importantly, my professional life lies at a juncture. I have taken way too many commitments in recent years, and I need to address a huge input>output situation. I have discussed the issue at length with friends, and I came to the conclusion that I have to scrap various things in my activities. The blog belongs to the list of activities, but for some reason, I keep on thinking that we should continue. This natural experiment just confirmed it, thereby leaving open the issue of how to calibrate an effective structural remedy (GCLC, my courses in Lille, BSC, etc.?).
Fourth, on Tuesday this blog was eventually accepted on Adwords publishing platform. With this, our incentives have changed :). We must now make sure that our posts generate a sizeable amount of traffic (how could we otherwise finance the chillincompetition conference?). And with more than 1000 visits and 17 comments, this post shows that we are up to the challenge. BTW: our decision to run ads has nothing to do with the somewhat weird, and coincidental Almunia ukaz on the very same day (or with other coincidental reasons).
Finally, whilst the mud throwers have been quite vocal on this blog in past months, the silent army of readers friends only occasionally gives feedback. With this post, we received many nice messages and comments from sad readers (in particular within the Spanish readership). In fact, I’d never have thought that there would be so many reactions. And the post has revealed a number of interesting things:
- Alfonso has a big fan, who will soon be invited for a free lunch;
- A complaint before DG COMP is apparently under way, with allegations that we abusively refuse to supply;
- Competition is one click away, and we now have a new competitor (http://chilledcompetition.wordpress.com);
- We are discussed daily at the university of Chicago, wow!;
- Bengoshi was the first to suspect a joke (he also gets a free lunch);
- M-Lex and Competition 360 have made no annoucement about our fake separation. We still need to get bigger !
Please note that the decision to publish this post was mine, and mine only. In no way, this reflects the opinions of my learned co-blogger and Friend Alfonso (who nonetheless suggested the title of this post).
To conclude, thanks to the very many of you who read us, and who will keep doing so.
Why we kept silent in the past days
Alfonso and I decided to part ways.
There will be no more posts on this blog.
He may explain why if he so wishes, but I just don’t feel like it.
Thanks for your support in the past years.
Short Notice – Evening Policy Talk with J. Fingleton on 22 May
The Global Competition Law Centre will host J. Fingleton (OFT) on 22 May in the context of its Evening Policy Talk series.
More information can be found here.
This will likely be a stimulating talk. I hope to see many of you there.
Antitrust Hotch Potch
The title of this post is not to pay tribute to my former blog.
And it safely assumes that my former co-blogger will not sue us for unfair free-riding, or for some weird trademark infringement.
A hotch potch of antitrust-related ruminations:
- It struck me today as a little counter-intuitive that the upper Court of Justice (“CJ”) benefits from the advice of an Advocate General (“AG”) in all competition cases, whilst the General Court (“GC”) which hears more cases – and which reviews the whole of the case (facts + law) – does not enjoy the same luxury of perspectives. I know all too well that the GC may appoint an AG occasionally. But I have never heard that the GC availed itself of this opportunity in a competition case. I also know that AGs’ opinions focus primarily on points of law. But the GC also deals with issues of law. This situation is even more more surprising considering that before 1989, competition cases were handled by the Court of Justice in first instance, with the systematic assistance of an AG. A possible explanation for the degrading quality of first instance judgments in competition cases?
- Talking of AGs’ opinions, AG Mazak’s opinion on AstraZeneca’s appeal to the CJ is out. In short, AG Mazak advises the Court to dismiss all appeals.
- Talking of pharmaceuticals, I feel I have to
self-promotewrite a line on a short, and modest text I wrote for the 1st edition of the Life Sciences College in March (see link below). This text deals with recent antitrust developments in the pharmaceutical industry. It has been published nowhere, and I just do not know what to do with it (expand, publish, update, trash?). If anyone has a clue, please drop a line.
Speech – A quick look into the past, present and future of AT enforcement in Pharma – (22 03 12) NP
User’s Guide
The naysayers pretend that this blog is for “self-promotion“.
Last WE, we received again a comment by “Someone” (or is this Raymond again?) who bashed us for our lack of objectivity, our allegedly one-sided editorial line, and other things that I cannot even recall.
Since we do not publish rubbish, especially when anonymous, we decided to trash the comment.
Now, a few reminders are in order:
- The reading of this blog is not compulsory. Escaping Chillin’Competition is just “one click away“;
- There are no barriers to entry on this market. A blog costs nothing to set up. Those who may be willing to contradict us can freely do so;
- We do not self promote, and certainly not Alfonso (did you read yesterday’s love declaration?). Our Friday slot series and the Economist corner bring ample proof of this;
- If I am the one to self-promote, it is because I am a fairly anonymous guy: I have a twin brother, and I have two very famous homonyms (see here and here).
Costs Conference – Last Call
A last call for our conference on costs next week (I have pasted below the earlier annoucement, Tomra is out).
I would be very grateful if our readers could disseminate the programme within their respective organisations.
To help clarify how and why costs are used in competition proceedings, the Brussels School of Competition(BSC) will organize on 9 May a half-day compliance seminar (this seminar was due in early 2012, but was rescheduled).
Amongst other things, this seminar intends to review recent case-law developments, in particular the recent judgments handed down by the EU Courts in the Post Danmark (C-209/10) and Telefónica (T-336/07) cases. Hopefully the Tomra ruling will also be out by this time [it is out].
In line with the interdisciplinary spirit of the BSC, this seminar attempts to “blend” competition law and economics. Under each selected topic (see agenda here), it thus brings together a team of one lawyer and one economist, who will seek to provide an integrated perspective on the issue.
This event is a joint initiative of the BSC and of the Institute for European Legal Studies (IEJE) of the University of Liege (ULg). The registration form can be found here.
The Friday Slot (9) – Damien Geradin
This 9th edition of the Friday Slot features an interview with Damien Geradin (Covington & Burling, TILEC). I owe a lot to Damien. If Alfonso ever did me the honour to invite me on the Friday Slot, I would explain that Damien is the one who really got me into competition law. We met at the College of Europe, where I was his student. Came the end of the year, he offered me a research assistant position in Liege. I took it, and he then taught me how to write, introduced me to the more economic approach of EU competition law and taught me that all established truths – and in particular legal principles – deserve to be discussed. I will never be grateful enough for all the things he brought me. More generally, in the competition community, Damien is known for his many powerful papers on abuse of dominance law. He is also amongst the very few EU law scholars who managed to obtain a teaching position in a US university, and to reach position 40 in the ssrn ranking of top authors for law. We are immensely happy to publish his interview today.
“Oscar” of the best competition law book? And of the best non-competition law book?
I have never really used any competition law book (as when I am looking for a piece of information, I am rather trying to find the relevant law review article), so it is a hard question to answer. The Antitrust Paradox of Robert Bork was certainly very influential and a good read, but it was flatly wrong on some points.
Mémoires d’Hadrien by Marguerite Yourcenar is a fabulous historical novel, which I read when I was a teenager. Since then, I have read very many books, but none exceeded the level of perfection and erudition of that book. Albert Speer’s memoir Inside the Third Reich is also a book that needs to be read (as it explains how the unthinkable happened), although I regretted that Speer did not express stronger regrets for his actions.
“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?
Although this is not a case-law development, I think that the Commission did a fine job with the guidelines on horizontal cooperation agreements. The Commission managed to find a good balance on some complex and sensitive issues.
As to the worst case-law development, the ECJ judgment in TeliaSonera is a terrible piece of work. It will be hard to explain to future generation of students why margin squeeze is conceptually different from refusal to supply, and why the condition of essentiality that must be met in refusal to supply cases doesn’t apply to margin squeeze cases. This leads to patently absurd results.
Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?
1. I would split investigative and decision-making functions in EU competition cases. No one would create enforcement agency combining such functions today. There is a large consensus among scholars and practitioners that such a reform is needed even if it is resisted by the Commission. How this should be done in practice is subject to discussion and various modalities could be envisaged. But the principle that no authority should combine investigative and decision-making functions is fundamental.
Output
With today’s announcement that Harvard University will soon endorse an “open-access” policy for academic publications, I thought time was ripe to post something on recent interesting publications (including my own :).
There’s a new journal coming, The Journal of Antitrust Enforcement, Oxford University Press. A label of quality => the journal is edited by Ariel Ezrachi (Oxford CCLP) and William Kovacic (George Washington University). More here.
A new GCLC book is out: “The Role of the Court of Justice of the EU in Competition Law Cases”, M. Merola & J. Derenne (eds), Bruylant. As the title suggests, the book contains papers on issues related to judicial review, in all areas of EU competition law. The list of authors is impressive, not least because my co-blogger is in. Topics covered include effectiveness, intensity and scope of judicial review, specialized courts, expert economic evidence, effects-based standards and legal certainty. A must read: Alfonso and Luis Ortiz Blanco’s paper. In short, they advocate that “legal certainty is hardly compatible with effects-based enforcement“. This view, which still holds sway in most of the Brussels legal community, would certainly deserve to be further discussed and researched (through, for instance, a survey with in-house counsels).
Finally, on a market where the “Whish” remains by far the dominant player, a maverick has made entry : It is entitled “EU Competition Law and Economics“. It is edited by Oxford University Press. And it was written by Damien Geradin, Anne Layne-Farrar and myself. This is the first edition, yet the end of a long story. Our goal has been to integrate as much basic, non quantitative economics into the book. Given that we will shortly start working again on the next iteration, we’d be glad to have your comments.
One last puzzling thing: in OUP ‘s catalogue competition law titles are classified under the category Public International Law…
PS: I forgot a piece of importance, i.e. a book on Vertical and Distribution Agreements in EU Competition Law edited with my colleague and friend Charles Gheur, from the Brussels School of Competition.
Recent Article 102 TFEU Case-law
Today, my ex-Howrey colleagues invited me to give a presentation on recent developments on EU competition law at Shearman & Sterling. I was very honoured.
It gave me the opportunity to read the recent judgments in Telefónica v Commission, Post Danmark and Tomra v Commission.
On my own arbitrary scale, the ranking of those judgments is as follows:
- CJEU, Post Danmark, C-209/10
- CJEU, Tomra v Commission, C 549/10 P
- GC, Telefónica v Commission, T-336/07
A word of explanation is in order: amongst those three judgments, the Grand Chamber of the Court should first be praised for its ruling in Post Danmark. The judgment dissipates the uncertainty generated by Compagnie Maritime Belge in clarifying that selective price cuts are presumably legal when prices > average incremental costs. But this is not all. The Court makes very explicit – and this is right in my opinion – that dominant firms can compete on the merits even if this forces rivals off the market (§22). In so doing, it recognises that not all foreclosure is unlawful, but only that “anticompetitive foreclosure” matters under Article 102 TFEU. Last, but not least, the judgment upholds the unnamed “Article 102(3) TFEU defense” that the Commission had plugged in §30 of its Guidance Paper (see §42).
The second judgment on my podium is Tomra. It comes second because the dicta that dominant firms should be able to compete on the merits for the entire market is wholly unfortunate (§42). It is first non-sensical from an economic standpoint. But as we wrote here, it is also inconsistent with the approach followed in other areas of competition law . A similar comment applies to the unconvincing assertion that a “suction effect” can be established without any need to run a price-cost analysis (§79). Not all in Tomra is bad though. In particular, the judgment encapsulates a subtle message of hope at §81 when it implies, a contrario, that the Guidance paper will have increased relevance in future Article 102 TFEU cases:
“As the Advocate General observes in point 37 of his Opinion, the Guidance, published in 2009, has no relevance to the legal assessment of a decision, such as the contested decision, which was adopted in 2006”
The worst of those three judgment is, by far and large, Telefónica v Commission. In this judgment, the General Court obediently implements the perplexing standards set by the Court in Konkurrensverket v TeliaSonera Sverige AB (C-52/09). To me, it is beyond common sense, conventional wisdom, reason, logic, honesty, intellectual sanity to consider that a dominant firm can abusively squeeze its rivals through high prices, meanwhile being under no duty to deal with them (see §180). In the language of driving metaphors (I love them), this is akin to forbidding someone from driving at 130 km/h, meanwhile explicitly entitling him to drive at 200 km/h.
I should, however, be very grateful to the Court. The release of those rulings comes at a perfect time, with our Brussels School of Competition conference on “Costs in EU competition law” scheduled on 9 May. The number of participants keeps increasing, and yesterday, the General Counsel of one of the 3 firms involved in those cases registered :).
The reason…
…. why Alfonso has not posted anything today, and did not post anything yesterday (he was preparing).
He does a great job, running an hilarious case-study with the Brussels School of Competition (BSC) students.
Chillin'Competition 