Author Archive
Single Market and Competition Policy
In past decades, the Commission repeatedly insisted on the importance of competition policy for the purposes of achieving the Single Market.
A few weeks ago, the Commission adopted a Communication entitled “Towards a Single Market Act – For a highly competitive social market economy“. Quite strikingly, the word “competition” appears only 9 times in this document.
Of course, this document is not competition law related. Yet, it seems to place only little emphasis on competition in general, not to talk of competition policy. This ought to be contrasted with the earlier Report of Mario Monti which referred 69 times to competition, and pleaded amongst other things in favour of:
“a new approach to industrial policy which builds on a mutually reinforcing relation with single market and competition rules“.
As a matter of fact, the concept of competition seems primarily quoted in relation to the international competition faced by EU businesses, and the need to foster the competitiveness of European firms.
A little disappointing.
Btw: Mario Monti’s report has gone relatively unnoticed in the competition law community, and this is extremely unfortunate.
The End of an Enforcement Paradigm?
In going through Damien Neven’s latest paper entitled “Economics at DG COMP” (with M. de La Mano, see link hereafter), it seems now clear that the tough, negative enforcement paradigm that prevailed under Aricle 102 TFEU in the Kroes years is over.
In recent years, the Commission has dumped several cases for lack of convincing evidence. The Qualcomm excessive pricing case and the Velux rebates case provide good illustrations of this.
In other cases, the Commission has renounced to follow a hard line, and negotiated a settlement with the parties. Rambus and Microsoft II (Browser) are the main cases here.
The tone of the new Almunia administration is far less agressive, and it seems that the adoption of prohibition decisions is no longer an enforcement priority. Interestingly, and contrary to what was argued by the former senior staff at the Commission, cases like Port of Helsingborg (rejection of complaints re. excessive and discriminatory pricing ) bring almost as much guidance as prohibition decisions.
The only area where I disagree with D. Neven and M. de La Mano’s paper is judicial review. The authors seem to consider that the General Court is ready to undertake serious economic assessments. The thing is, Judge Wahl told us the contrary a month ago at the GCLC annual conference. Plus this may be true in the area of merger control (Ryan Air v. Commission, and before Airtours, Tetra Laval, etc.), but is certainly less obious in other areas (Article 102 TFEU).
A day in my (professional) life
Not much to report today, so here’s a full account of my day (I admit this is of limited interest for our readers, but (i) I have little inspiration today, and (ii) it will at least prove that some academics do work).
5.00 am: wake up call.
6.00 am-10.30 am : draft a paper on the new EU framework on vertical restraints (which I co-write with my friend and colleague David Henry).
10.30 am-11.00 am: answer to emails and call with my secretary at university.
11.00 am-11.45 am: read a paper on trademarks and antitrust law.
12.30 am-2.30 pm: lunch with JJ Evrard, re. possible conference on trademarks and antitrust law in early March.
2.45 pm-3.30 pm: answer to emails.
3.30 pm-5.00 pm: review outline of Elise Provost doctoral thesis.
5.00 pm-5.30 pm: call with Elise.
5.30 pm-6.30 pm: prepare annual meeting of the GCLC scientific council.
7.00 pm-10.00 pm: annual meeting of the GCLC scientific council.
10.30 pm : s***t, I forgot to post shting on the blog…
Probably less than most private practitioners, but still a pretty busy day after all.
PS1: the dominant OS for PCs turned 25 a few days ago.
PS: We still have a few seats for tomorrow’s Evening Policy Talk with D. Neven. Please drop me a line if you want to participate.
Smooth Criminal
This post is about the long and winding road to the recognition that competition law sanctions are criminal in nature.
In his Opinion here in ArcelorMittal Luxembourg v. Commission, AG Bot argues that competition proceedings are smoothly “quasi criminal“. See in particular §205:
Nous visons, en particulier, le respect des droits de la défense et celui du principe de la présomption d’innocence consacrés aux articles 47 et 48 de la charte. La Cour a itérativement admis que ces droits fondamentaux, garantis également à l’article 6 de la CEDH, doivent être observés dans toutes les procédures relatives à des violations des règles de concurrence susceptibles d’aboutir à des sanctions telles que des amendes ou des astreintes, même s’il s’agit d’une procédure ayant un caractère administratif. À cet égard, la Cour s’est expressément fondée sur la nature des infractions en cause ainsi que sur la nature et le degré de sévérité des sanctions qui s’y rattachent. Nous savons également que le respect de ces garanties revêt une importance d’autant plus fondamentale que nous sommes dans le cadre d’une procédure de nature quasi pénale, dans laquelle la Commission exerce des fonctions d’enquête, d’instruction et de décision et dispose, à cet égard, d’un large pouvoir d’appréciation.
See also §41:
Si cette procédure ne relève pas stricto sensu de la matière pénale, elle n’en revêt pas moins une nature quasi répressive.
For more, see the recent book edited by the GCLC, which comprises a chapter on this issue.
Thanks to my friend M. Abenhaïm (Van Bael & Bellis) for the pointer.
ULg Event on Internet Piracy (+ random thoughts on 102 TFEU)
The University of Liege has teamed up with two other Belgian universities to offer an ambitious conference on Internet piracy. On our side, Prof. Alain Strowel and Véronique Delforge are the masterminds behind the project. See link hereafter.
10 11 15 Colloque Téléchargement
I am in Lille today, lecturing on Article 102 TFEU. I read again the Guidance Communication in full. Overall, this is a good document. A few things that retained my attention this time, and that did not strike when I commented it a while ago in World Competition:
- At footnote 3, there is a reference to 101(3) TFEU, which lends support to the implicit existence of an 102(3) defense;
- §56 on tying would have benefited from illustrations;
- In line with the CFI ruling in MSFT, intellectual assets subject to IPRs are not subject to a particular refusal to deal standard;
- The market coverage of the allegedly abusive course of conduct brings relevant information (§20, to contrast with Tomra)
- Saying that there can be unlawful rebates absent a sacrifice is not wholly true (§37). According to the test devised at §§43-45, to be abusive, the rebate must entail a sacrifice, but on the contestable share.
What’s wrong with French Politicians?
You liked the Alstom saga?
You loved President Sarkozy’s assault against article 3(1) g) EC?
Now you will surely adore the latest anti-Brussels protests voiced by the French government. Yesterday, several French Ministers lambasted the Commission’s decision in the air freight cargo case as “disproportionate“. Air France was fined €380 millions.
50 years after the entry into force of the EU Treaty, the declarations of those politicians – who seem to have just discovered the existence of EU anti-cartel provisions – are pathetic.
Beyond the ridiculous political gesticulations, a number of other things strike me as odd. After all, the victims of the cartel (air freight cargo customers) include probably a large number of French companies. Rather than siding here with Air France, the Government could have congratulated the Commission for protecting the interests of French customers. Yet again, French politicians decided to play Brussels v. Paris.
But there’s even worse. Buckle up and seat tight: the European affairs minister argued that the decision was discriminatory. Believe it or not, the alleged discrimination lies in the fact that some companies got off the hook in exchange for cooperation with the Commission. Obviously, our chap needs a crash course on leniency. Happy to offer my services (there is obviously no discrimination, as long as all companies can in principle equally receive immunity in exchange for cooperation). For more, see the post hereafter by Jean Quatremer (in French).
In the same vein: François Lévêque has sent us last week a paper about the new French electricity act. According to the author, this Act is (i) detrimental to competition; (ii) entails heavy handed State regulation; and (iii) is prone to regulatory capture and rent seeking behaviour. Scary. See link hereafter.
The Least Well Kept Draft Competition Text
Lucky me, I have seen the latest version of the mammoth draft horizontal guidelines currently circulating within the Commission.
The text comprises:
- 95 pages(!)
- Loads of examples
- Some wording on standardization agreements. The draft also dedicates two §§ to the methods for assessing whether IPR fees are FRAND or not (they refer in particular to the ex ante v. ex post comparison method)
- A full section on information exchange agreements, with an appreciable reference (in a footnote) to Airtours and Impala
Looks promising. My only concern is elsewhere. Environmental agreements are no longer discussed in a stand-alone section, but are now part of the section on standardization agreements. With the increased influence of green propaganda ideas, I am surprised that Brussels officials did not actually decide to give more exposure to environmental agreements.
Four Years as the Chief Competition Economist
Feel like having a beer with attending an evening talk of the Chief Competition Economist?
The GCLC will have its third evening policy talk on 23 November 2010 (Marriott Brussels). See hyperlink below for registration form. Tickets will be granted on a 1st come/1st served basis.
GCLC – 3rd Evening Policy Talk – Damien Neven – Four Years As The Chief Competition Economist
Gerber goes Global
Back in the day, D. Gerber (University of Chicago) made a great job at describing the historical roots of the EU competition system and its inner theoritical logics.
More than ten years after, his book is still available for 265$ on Amazon.
If Gerber’s new piece is as influential as the first, it will surely win whatever competition prize exists and, very importantly, collect huge royalties.
See flyer hereafter: OUP UK Flyer 2010 (2)
Chillingcompetition received no copy, but others apparently did and made a good review.
College of Europe
The College of Europe – the academic institution which hosts the GCLC – made the buzz yesterday. I paste hereafter the full AFP story.
Belgian premier butt of linguistic gaffe(AFP) – 1 day ago
BRUSSELS — The premier of linguistically-divided Belgium, Yves Leterme, came in for a shock on being told Tuesday that French was the nation’s official language as well as his own — though he is a Flemish-speaker.
The gaffe came when Leterme, who has a French name and speaks the language fluently, visited the prestigious College of Europe in Bruges, flanked by German Chancellor Angela Merkel, who is on an official visit to Belgium.
Delivering a speech to the pair, the head of the institution, Spaniard Inigo Mendez de Vigo, said he would conclude in Belgium’s official language, French, “the language of Yves Leterme”, raising eyebrows in the room.
Leterme currently heads a caretaker government following inconclusive general elections in June that have left the country rudderless as parties on both sides of the linguistic divide quarrel over a deal to form a government.
Sixty percent of the country’s around 10 million people speak Flemish, the remainder French.
This story is a telling illustration that no one understands a d***** thing as to what is currently going on in Belgium.
Also, the head of the College is currently Rector Paul Demaret.
Chillin'Competition 
