Chillin'Competition

The vociferations of EU lawyers against alleged prosecutorial/decisional biases, criminal nature of the fines system, etc., will soon be put to the test.

Last week, the Commission proposed negotiation directives for the Union’s accession to the European Convention on Human Rights (ECHR). This means that acts of the EU institutions, including Commission decisions and rulings of the EU courts in the field of competition law might soon become challengeable in Strasbourg, for violation of the convention.

I suspect the judges in Luxemburg will not be happy about this.

Thanks to C. Bergqvist for the pointer.

(Image possibly subject to copyright: source here)

A very short post to congrat our friend Andrés Font Galarza for his nice move to Gibson Dunn & Crutcher LLP.

The European Parliament’s (EP) resolution on competition policy adopted a week ago has gone largely unnoticed (it is an answer to the Commission’s Annual Report for 2008). Shortly after the Lisbon Treaty, of which the EP is the big winner (source, P. CRAIG), this resolution signals  the EP’s intention to be more vocal on antitrust issues. The resolution contains a great number of proposals, such as a: (i) call for introducing individual sanctions for competition law infringements; (ii) a greater focus on small and medium enterprises; and (iii) requests for the opening of sector inquiries. My gut feeling: I am skeptical as to what the Commission should do with this. This resolution may further politicize competition matters, and I therefore dislike it.

The good thing though: I was interviewed on Canal Z channel. The link to the interview can be found here (around 2.10).

Thanks to E. Provost for the pointer.

The upcoming guidelines on horizontal cooperation agreements will fill long lasting gaps. They will include some wording on standardization and information exchange agreements. I paste hereafter the words of the new DG COMP Director General in his first speech (three days ago):

The review of the horizontal guidelines is a good opportunity to clarify what is expected from standard setting organisations as regards disclosure obligations on both pending and granted patents if their standardisation agreements are to comply with the provisions of Article 101. It is also a good opportunity to include some guidance on the meaning of what are fair, reasonable and non-discriminatory (“FRAND”) terms for companies licensing technology. One possibility would be to include a mention of the benchmarks that could be used to assess whether the licensing terms are actually fair and reasonable.

On information exchange, the new guidelines are a good opportunity to provide legal and economic guidance to companies. Our intention is for the guidelines to specify what is considered to be a clear-cut restriction of competition or for example what are the market characteristics that may lead to an exchange of information having a collusive outcome. The guidelines should also give guidance on economic efficiencies that can be created by an exchange of information such as solving problems of asymmetric information or seeking a more efficient way of meeting of demand. It is also the intention that the guidelines will contain many examples as illustration, which will help companies in their assessment. Here again, more legal certainty will be conducive to a better competitive environment.