Author Archive
Professional moves
Lately, several good friends of Chillin’Competition have made interesting career moves. A brief recap:
- Scott McInnes (Jones Day and She Goes Electro) is moving to Mastercard. BTW, Alfonso, here’s a present suggestion for Ms. Lamadrid who recently got her driving licence: Scott sells a very nice car at a very competitive price;
- Ief Daems (ex Howrey/Shearman & Sterling) has moved to Samsung;
- Laura Zadunayski (former student of the ULg LL.M in Competition and IP law) leaves Johnson & Johnson for
booseDiageo (this one is very bad); - Tarik Hennen (Squire Sanders Brussels and GCLC) leaves the bar and is poised to reappear in a wholly unrelated market;
- Guillaume Taillandier has left Squire Sanders Brussels for a in-house position at Bemis – a flexible packaging company with its European HQ in Belgium;
- The new Richard Whish, Christopher Townley (King’s College London) has been awarded the title of Senior Lecturer with effect from 1 September 2012
- Alfonso ………….. stays at Garrigues.
- I stay full time in my good old Belgian university…
Congrats’ to all of them!
Costs in EU Competition Law
Competition lawyers often get lost in the semantics of costs…
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.
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 (8) – Johan Ysewyn
For this eighth edition of the Friday Slot, Chillin’Competition has interviewed Johan Ysewyn (Covington). Our readers willing to improve their presentation skills should once attend Johan’s seminar on cartel law at the Brussels School of Competition (BSC). With his partner in crime Ewoud Sakkers, they have managed to craft a real attractive seminar which combines high-level competition law teaching with role-playing. Both instructive and hilarious. And each year, the students’ evaluation reach sky-high levels. All of this to just say that the powerful and humourous Johan denotes within the grey world of the legal community. We are immensely proud to have him on this slot. Enjoy!
PS: In a gesture of solidarity with our fellow Spanish professor who got sued for defamation on his blog, Chillin’Competition will be closed next week. This decision has nothing to do with the fact that Alfonso will be away in Croatia with ‘Ms Lamadrid’ nor with the fact that I will be skiing in France.
“Oscar” of the best competition law book? And of the best non-competition law book?
The Oscar for the best competition law research book still goes to Korah’s yellow book. I kept my edition from my College of Europe days and although the last edition dates back to 2007, it still is a great – and to the point – introduction to the competition law field. Judge Bork’s “The Antitrust Paradox“, has been mentioned already by a number of my co-Friday slotters and remains an essential read. The idea that antitrust laws should be about protecting competition rather than competitors seems to be still a novel concept for a number of competition authorities.
A more fun competition-book is Christopher Mason’s “The Art of the Steal” which gives the background and history to the Christie’s/Sotheby’s cartel and is really a good “thriller”-type read. Highly recommended.
On the non-competition side, I have started reading some of the French modern literature. Jonathan Littell’s “Les Bienveillantes” is simply a must-read in dealing with the darkest period of the 20th century. Am also a big fan of Amélie Nothomb, especially where she describes the cultural clash between East and West. “Stupeur et tremblements” is an essential read for those of you who have Japanese clients. A friend recommended me Michel Houellebecq – La Carte et le territoire – but haven’t got beyond the first 20 pages yet.
“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?
Oscar of the best case-law development: All of the cartel judgments of the last year where the Commission is being criticised for misreading/misinterpreting the evidence. Finally.
Oscar for the worst case-law development: Pfleiderer. Commission now needs to legislate to avoid leniency statements being disclosed, something which strikes me as a no brainer.
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?
- Find a comity-rule for multi-jurisdictional merger filings. What a waste of time and money. Good for law firms but the benefit of having 20 countries or more looking at a merger – where some of them only have a tangential interest escapes me;
- Reinforce internal checks and balances within DG Comp. They have been slipping on that. And yes, I know we’d all look to split the decisional and the investigatory layer but I am a realist;
- More judges in the GC, resulting in speedier appeals.
Average working time/week?
I have realized that hours in the office and efficiency don’t necessarily match up.
Why do you work in competition law? How did you first get into it?
As many people from my generation, I started off doing a lot of general EU-type work as well as commercial work. There was the Internal market push by Delors – 1992 remember – and there was lots of advisory work on distribution contracts and the like. But things were changing. The Merger Regulation had just entered into force and national authorities were being set up all over Europe. So there was simply more competition work to do.
And yes, I enjoy it too. Saying that it combines law, economics and policy is so cliché – but it is true.
Veggie OD
Sorry, can’t help it.
It is now the Commission that puts food on the table.
Yesterday, the Commission announced a 169,000,000€ fine in the Freight Forwarders cartel.
On this occasion, it announced that some cartel participants had organised their contacts in a so-called “Gardening Club” and that they had used coded language based on names of vegetables – such as “asparagus” and “baby courgettes” – when talking about fixing prices…
Thanks again to Aoife White for the pointer
Beyond Endives
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.
White Russian
Photographed yesterday, in Moscow’s metro. I know, I am a real antitrust geek…
Now, more seriously, I am spending the week in white Russia – it has been heavily snowing here – where I teach a course on competition law at MGIMO university. This is the third year I do this. Again, it is a very pleasant experience. I am very impressed by the level of the students.
Teaching EU competition law outside Europe requires some adaptations, in particular when it comes to give examples. I thus did my homework to get acquainted with the names of (i) national telco incumbent and of the big supermarket chains; (ii) the basic structure of Russian competition law; (iii) the Customs Union between Belarus, Kazakhstan, and Russia.
A final thing. I made a presentation at Deloitte and Touche Moscow yesterday on recent developments in EU competition law (see link to the ppt below). It is a rather basic presentation. I have to make a similar presentation in several law firms in Brussels in the upcoming months, but I intend to sophisticate it a little. If you have any comment/input/remarks that may help, please write to me.
Recent Developments in EU Competition Law – Deloitte (21 03 12) NP
PS: to avoid any misunderstanding, the title of this post is in relation to The Dude’s favorite drink…
The Economist Corner (2) – Patent Settlements in the Pharmaceutical Sector
For this second edition of the Economist Corner, Benoît Durand from RBB Economics has sent us a post on patent settlements in the pharmaceutical sector. Benoît advocates against a per se approach to such agreements, and gives examples of pro-competitive settlements. The topic of Benoît’s post is timely. At a Brussels event last week, an EU official hinted that COMP would likely not treat such agreements under a per-se approach. He also said that the Commission would seek to provide as much legal certainty as possible on the issue. As some of you may know, the Commission dropped several settlement cases lately (GSK; AstraZeneca) but still continues to scrutinize other cases (J&J v. Novartis; Cephalon v. Teva; Servier (Perindropil); Lundbeck).
Following the conclusion of the pharmaceutical sector market inquiry in 2009, the European Commission has launched a number of investigations on patent-settlement agreements that include a payment between an originator and a generic company (also called “reverse payment” settlements[1]). The Commission is worried that some of these payments may be used used by originators to reward generic manufacturers for postponing the launch of cheaper drugs on the market. It is easy to see that the originator has a strong incentive to delay generic entry in order to continue earning a monopoly rent on the sale of its patented drug. When the patent exclusivity expires generic drugs may begin challenging the originator’s monopoly position. In this case, sharing part of the monopoly profit with a potential entrant is a better outcome than letting competition eat the rent away.[2]
However, as you might have guessed, reality is more complicated, and perhaps surprisingly, patent settlement agreements involving reverse payment need not necessarily be anti-competitive. The first thing to note is that the originator drug is protected by a patent, and it is only when the legal exclusivity expires that generic drugs may begin challenge the originator drug. The second thing to note is that the validity of a patent is never a sure thing, and therefore its expiry date is uncertain. Even though a pharmaceutical company has filed a patent, generic entrants may still challenge the incumbent before the formal expiry date. Generic producers may consider that they have a good chance of challenging the patent in courts. In the case of entry, the patent holder would seek an injunction to prevent entry, but judges may or may not grant the injunction, and they may or may not uphold a patent.
Presidential Endives
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′.
Social Competition Law
Next week is when Brussels antitrust specialists d***k their face off socialize.
See for yourselves:
- On Tuesday, the law firm Wilson Sonsini Goodrich and Rosati organizes a reception at the Cercle de Lorraine;
- On Thursday RBB Economics throws a party at the Concert Noble for its 20th anniversary;
- On Thursday, Mc. Dermott Will & Emery also holds a reception.
On top of this comes the1st edition of the Life Sciences College organised by the law firm Sidley Austin (I will make a short presentation there) and a GCLC lunch talk on minority shareholdings on Friday.
A heavy week ahead. I advise a quiet week-end. And the reading of this piece on Do’s and Dont’s at social events.
Disclaimer: unlike what a French dead writer may say, this post does not purport to flatter the Brussels establishement on competition law.
The Friday Slot (6) – Jacques Bourgeois
Prof. Jacques Bourgeois is on this week’s Friday Slot. A few words about Jacques are in order. I first met him as a student at the College of Europe. He was presenting his seminar during the “beauty context” shopping week, when students select their options. I was impressed, so impressed that I did not chose the seminar, for fear of not being up to the challenge. Jacques seemed a somewhat demanding Professor for the continental student I was, navigating with increasing ease in competition and trade law matters, requesting active student participation, and professing in beautiful English.
Our paths crossed again 8 years after, when I started as the executive secretary of the GCLC. We worked together for several years. In my short career I have had the immense chance to meet very many professionals. Yet, I have rarely seen a lawyer with a such mastery of social skills and management capabilities. Jacques is the kind of person who can turn a tense meeting with irritated attendees into a relaxed, and possibly funny, event. This is maybe why everyone in the business likes him, and why we at Chillin’Competition like him so much. Thanks to him for having taken the time to answer our questions.
“Oscar” of the best competition law book? Non-competition book?
In the competition law field, I praise the book of David Gerber: Law and Competition in Twentieth Century Europe. Protecting Prometheus (Oxford University Press, 2001)
Out of the antitrust world, but still related to the legal field, John Rawls’ A Theory of Justice (Belknap, 1971) is a must.
“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?
In my opinion, the CJEU made a great job in Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v European Commission (CJEU, 15 December 2010, Case T-427/08).
On the contrary, I am very critical towards the Alrosa ruling (CJEU, European Commission v Alrosa, Case C‑441/07 P).
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?
The one reform that I would organize in priority: that fines be decided upon by a court of law.
Chillin'Competition 