Author Archive
Job Application
Yesterday, one of my LL.M students made the buzz in French press.
President Hollande was apparently in Dijon to deliver a speech on new government-sponsored traineeships for young people without a degree.
Louis Godart, currently enrolled in our ULg LL.M, was in Dijon too.
He managed to hand in his CV to Hollande, and urged him to also help students with a degree, who too face hurdles on the labour market.
For more, see here.
A hat tip to Louis for his brave move. We don’t teach martial arts to our students – shall we? – so I am very curious to learn how he managed to make it through Hollande’s muscle men.
Louis also made a clever move. After all, in a country like France where Governement is omnipresent, the best mailbox to post a job application is that of the President, not that of the private sector.
Finally, a big thank you to Louis for the unexpected publicity for our ULg LL.M. On this, I must stress that the programme keeps improving. We have this year a group of 25 very motivated students, who come from all over Europe. And we’ll soon be appointing a new Professor in IP and innovation law (for the call for applications (in French), see link below; If anyone’s interested by this, pls drop a line).
Vacance – Charge de cours – Droit de l’innovation et de la PI
Microsoft’s contribution to the EU budget
Today the European Commission imposed a 561 million euros fine on Microsoft (roughly 37 euros per each of the 15 million copies of Windows that were sold in the EU in breach of the 2009 commitment).
As I said in a previous post, I don’t think anyone believes that Microsoft did this on purpose, so the amount of the fine might have come as a surprise to quite a few people (although not to those who participated in Nico’s poll yesterday).
In any case, this is the third time that Microsoft contributes to the EU Budget because of competition related matters. In total, it has paid approximately 2 billion euros.
[Btw, I couldn’t help remembering Neelie Kroes statement after fining Intel 1 billion euros: “Intel´s latest advertising campaign proposes Intel as the sponsors of tomorrow; well, now they are the sponsors of the European tax payer” (two years ago we nominated the video of this speech to an Antitrust Oscar)].
When one hears about these figures it’s easy not to realize what numbers mean. So we’ve decided to help you become aware of what 2 billion represent:
According to the World Bank there are 41 countries in the world whose GDP is lower than 2.1 billion euros (approx 2.7 billion dollars).
With 2 billion euros the European Union could:
– Bail out banks in Cyprus (estimates say that it will cost up to 2 billion);
– Pay for a couple of ambitious science projects (like studying graphene and fighting brain disease);
– Buy the full squads of Real Madrid, FC Barcelona or Manchester United to represent DG Comp in the internal football championship;
– Buy half of an aircraft carrier (don’t know why they would want an aircraft carrier, or why they would only want half, but I’ve seen more absurd public spending…);
– Pay DG Comp’s budget (93,5 million euros) for 21 years;
– Develop the atomic bomb (not in today’s money, though; it cost 2 billion back in 1945).
– Buy a few Greek islands for its officials to go on holidays (the most expensive one I’ve seen here costs 150 million..). Odd thing, I saw an ad for Bahamas islands on sale, and there is a private islands magazine with a Fall/Winter catalog for islands (!)
– Produce all of the 10 most expensive films in history (Pirate’s of the Caribbean, Tangled, Spider-Man 3, John Carter, Harry Potter and the Half Blood Prince, Avatar, The Dark Knight Rises, The Chronicles of Narnia: Prince Caspian, Pirates of the Caribbean: Dead Man’s Chest and The Avengers).
– Build the tallest building in the world to host DG Comp (it would be more impressive than the Madou Tower to which it is moving…the Burj Khalifa costed 1.5 billion). For my suggestion on how it could look like, see here 🙂
Anymore ideas??
More on antitrust and politics: Interview with CPI
As some of you may remember, a few months ago I wrote a post here on “Antitrust and Political Stupidity“. Competition Policy International asked me to develop the post for a special issue of the Antitrust Chronicle, which I did one-handedly during my extended Christmas break (the paper is available here). I was then asked to do a follow-up interview with CPI; the interview was published today (click here for the version in CPI’s web).
Asked about whether I was being too optmistic in the paper, I started my response saying that “my paper was written during the Christmas break, and it is not much more than a Christmas tale, a superficial exercise of wishful thinking” (see below for the complete answer). Little did I know that the mailing that was sent today to some thousands of people would summarize the interview saying that: “Lamadrid says his paper is ‘a superficial exercise of wishful thinking,’ and he tells CPI why“. So, here I am, promoting my work by saying that it’s really not any good (between us: it’s not a masterpice, but it’s somehow original and maybe not as crappy as my own quote suggests…). Man do I really need to work on my self-selling skills…. 😉
If anyone’s interested, you can click here to read the full interview:
European Commission prohibits Ryanair/Aer Lingus deal
Last Wednesday the Commission confirmed that it has decided to prohibit -for the second time- the proposed merger between Ryanair and Aer Lingus merger (click here for the press release). This is the fourth prohibition decision adopted under Commissioner Almunia, and the 24th in the history of EU competition law.
The decision has not yet been published. We had assumed that while we waited for it we could at least report on Michael O’Leary’s (Ryanair’s CEO) reactions. However, Mr. O’Leary has not made any public statements of the kind that we were expecting (remember his analogy between the European Commission officials and North Korean economists? 🙂
Ryanair has issued a press release in which it argues that its offer “was supported by an historic and unprecedented remedies package that included not one, but two upfront buyers (BA/IAG & Flybe) to take over approximately half of Aer Lingus’ short-haul business (…) The transfer to these upfront buyers of Aer Lingus’ business on the 46 crossover routes identified by the EU Commission, together with the relevant slots, aircraft, personnel and branding, was ensured by binding, irrevocable commitments by those upfront buyers including Board approvals”. In Ryanair’s view, “[t]he history of the EU’s treatment of Ryanair’s two offers for Aer Lingus conclusively proves that this prohibition is a “political” decision to pander to the vested interests of the Irish Government (a minority 25% shareholder in Aer Lingus) and is not one that is based on a fair and reasonable application of EU competition rules or precedent airline merger approvals in Europe”.
We have no clue on whether the allegations over the political motivations of the decision are founded or not. But politics aside, this case resuscitates some tricky substantive/institutional questions. The nature and scope of the remedies proposed by Ryanair was indeed pretty substantial, and arguably unprecedented (Ryanair had even pledged to give 100 million to Flybe to ensure its sustainability) so, query:
Are EU merger control rules on when an up-front buyer is a suitable one sufficiently clear? What discretion should the Commission enjoy in this regard? Ryanair has announced that it will appeal the decision before the General Court, so we should expect to have some answers to these question soon.
Data protection and antitrust law
Regretably I couldn’t attend Concurrence’s New Frontiers of Antitrust conference held last Friday in Paris in spite of Nicolas Charbit’s kind invitation. I hear that the conference was once again most interesting, so congrats again to Nicolas and the rest of the team at Concurrences.
Perhaps the most prominent topic in this year’s program related to the interface between data protection and antitrust law. I’m sorry to have missed the discussions over this issue, for perhaps they would have enabled me to see where’s the substantive beef that justifies all the recent noise. Whereas I understand the practical reasons why this issue has conveniently become a hot one in certain academic circles, I confess my inability to see the specific features that make this debate so deserving of special attention.
The way I see it, personal data are increasingly a necessary input to provide certain online services, notably in two-sided markets. So far so good. But this means that personal data are an input, like any other one in any other industry, with the only additional element that the recompilationa and use of such input is subject to an ad hoc legal regime -data protection rules-.
In my view, competition rules apply to the acquisition and use of personal data exactly in the same way that they apply to any other input, and then there’s a specific layer of protection. I therefore understand that data protection experts have an interest in finding out about the basics of antitrust law to realize about how it may affect their discipline, but I fail to see the reasons why competition law experts and academics should devote their time to an issue which, in my personal view, raises no particularly significant challenges. [The only specificity may be that data protection practices may constitute a relevant non-priceparameter of competition, for companies may compete on how they protect consumer data]. I would argue that this is a serious matter, but one for consumer protection laws to deal with, and in which competition policy may at most play a marginal role (I understand this was also the view expressed by Commissioner Almunia in a recent speech).
To compensate for my absence at Concurrence’s conference, on Saturday morning I read some interesting “preliminary thoughts” published last week by Damien Geradin and Monika Kuschewsky: Competition Law and Personal Data: Preliminary Thoughts on a Complex Issue. The piece provides a contrarian view to the one I just expressed. Since I might very well be wrong (that’s at least what my girlfriend’s default assumption in practically all situations…) I would suggest that you take the time to read it in order to make up your own mind. It won’t take you long, but since behavioral economics (and the clickthrough rates to the links we show) tells us that many of you are of the lazy type, in the interest of a balanced debate here’s a brief account of its content; my comments appear in brackets:
(Click here if you’re interested in reading more)
Forthcoming seminars
As you know, we like to use this blog to favor our own related services 😉 So here’s some advertising on three upcoming seminars to be held in Madrid within the framework of the Competition Law Course that Luis Ortiz Blanco and I co-direct, now on its XVI edition. (The pic above was taken during a lecture I gave there last Wednesday on antitrust in non-regulated network industries).
28 February- 1 March: Seminar on Competition Law in the Public Sector (coordinated by José Luis Buendía -Garrigues- and Jorge Piernas -EUI-), also featuring Joaquín Fernández (DG Comp), Luca Rubini (Univ. Birmingham), Jerónimo Maillo (CEU), Carlos Urraca (Legal Service, European Commission), Deborah Heredia (Spanish Ministry of Foreign Affairs), Juan Arpio (Univ. Zaragoza), Alejandro Requejo (Compass Lexecon), Juan Pedro Marín (SEPI), Rafael Calvo (Garrigues) and Juan Espinosa (Spanish Competition Authority). Program available here: Competition law in the public sector 2013
8 March: Seminar on Recent Developments in Merger Control and Art. 102, featuring Cecilio Madero (Deputy Director General, DG Comp), Per Hellström (Head of Unit, DG Comp), Nick Banasevic (Head of Unit, DG Comp), and Milan Kristof (Référendaire, CJEU). Program available here: Recent developments in EU merger control and Art. 102 TFEU
15 March: Seminar on IP and Antitrust (coordinated by Alvaro Ramos), featuring Claudia Tapia (IP Director, Blackberry), Gil Ohana (Senior Director, Cisco Systems), Gunnar Wolf (DG Comp), Ief Daems (EU Counsel, Samsung), María Álvarez (Advisor, Spanish Competition Authority) and Victoriano Darias (Managing Director, The Napkin Idea). Program available here: Seminar IP and Antitrust 2013
Competition Policy and Happiness
Many of you have probably had a chance to read various texts on the goals of competition law (the one in Giorgio Monti’s book is particularly good; more recently, I also liked Kevin Coates’ approach).
For an original approach to this discussion, check out Maurice Stucke’s recent paper “Should Competition Policy Promote Happiness?” As noted in the abstract, the paper builds on recent academic literature on happiness and goes on to argue that “competition policy in a post-industrial wealthy country would get more bang (in terms of increased well-being) in promoting economic, social and democratic values, rather than simply promoting a narrowly-defined consumer welfare objective“,
Many thanks to Wouter Wils for the pointer!
P.S. And speaking of papers, Pablo Ibañez, Hans Zenger and myself could use some additional votes for Concurrence’s Antitrust Writing Awards 😉
What I really meant (on recourse to commitment decisions)
As I was exiting a plane on Friday night I received a bunch of email notifications about the comments that were being written to one of our posts (probably the most interesting public discussion over allegations of “scraping” so far; not the post, but the comments to it) in which “Bagnol” made a couple of attempts to clarify what it was that I really meant on my post and in a later comment thereto. At the same time, I read a post written by Nico that started with an idea that I must have thrown out at a conference on why the Commission resorts to commitment decisions, but with which I don’t feel identified (most likely it’s my fault for not having expressed it well). Funnily enough, I couldn’t write any comments on what I really thought because I had committed to take a break from my blackberry (like certain companies I also break my commitments: I had to check my email hidden in an airport’s restroom; yeah, it was very glamorous..).
Anyway, let’s cut to the chase, and let me clarify my (not at all original) views on the increasing resort to negotiated solutions (for previous posts on this see, among others, here, here or here).
I have mixed feelings about the use of Article 9 decisions. On the one hand, I understand the Commission’s tendency to resort to them. Commitments enable authorities with limited resources to swiftly and effectively address certain practices (particularly in rapidly evolving markets, where a level-playing feel is needed, or when a fine does not appear to be adequate). On the other hand, given my whining-lawyer nature (and because of the little academic wannabe that some of us have inside) I sometimes also regret the lack of discussion and precedent inherent to such decisions. Now, is this new commitment-based enforcement paradigm positive or negative? There’s no clear answer. I guess that it all comes down to the role one atributes to the Commission: is it to put and end to anticompetitive conduct and to restore competition immediately through direct intervention, indirectly through precedent setting, or through a careful balance of both?
More on Google: is scraping anticompetitive?
One of the good things about my powerpoint presentation on “Search engines and competition law” is that it does not give a clue about the substance of what I said 😉
As you can infer from my previous posts on this investigation, I’m quite skeptical (to put it mildly) with regard to the legal basis for the accusations against Google (partly because I don’t know whether there are any…).
Whereas in my presentation I mostly addressed search bias-related allegations, there is another issue that raises pretty fundamental questions. I’m referring to the claim that Google “scrapes” content from other websites and appropiates it (these allegations refer to the small portion of black letter text that contextualizes search results and that you find below the green web address shown below every result).
Allegations over this practice strike me for various reasons and raise a few important questions, mainly what on earth does it have to do with competition law?
If the content at issue is not copyright-protected; if they are short informative excerpts originating from content made publicly available; if they contribute to “scraped” pages getting more traffic; and if they’re necessary for users to understand search results; why should competition law ban their use? Why should competition law create a second level of protection stricter than copyright law? Why second-guess copyright law? This brings us back to an old debate: where does competition law stop? Should antitrust also second guess, for instance, environmental law, tax law, accountancy or data privacy? (I’ll come back to the data privacy-antitrust interface on a later post, for it “coincidentally” appears to be a hot academic topic nowadays).
Allegations on scraping were discussed within the framework of the FTC’s investigation. In fact, as part of the settlement with the FTC Google has committed to allow all websites to opt out of appearing on Google’s vertical sites while still appearing in organic results.
Given that complainants in the EU proceedings have also insisted on this matter [(probably scraping content from each others’ complaints ;)] it’s safe to guess that the European Commission might attempt to obtain a similar commitment, and I find this quite a problematic precedent. Againg: why is scraping a competition law issue?
I’m comforted not to be the only dissenter. Commissioner Rosch authored a dissenting opinion accompanying the FTC’s statement in which he articulates the view that these practices “do not violate the antitrust laws in any respect“. He notes that his colleagues manifested “strong concerns” about these practices, but that no one ever argued that they breached antitrust rules, not even Section 5 of the FTC Act.
For a sensible opinion on why the display of content from other websites in search results is a perfectly valid business practice, take a look at the German Supreme Court’s Judgment in the Paperboy case (click here for a summary in English)
Materials from the GCLC lunch talk on Google
Last Friday I was invited to speak on these issues at a GCLC lunch talk on “Google Search engines and competition law“. I truly enjoyed it.
I might develop the content of my presentation in a series of forthcoming posts, but today we’ll simply provide you with the presentations projected at the lunch talk.
I had the impression that the audience was a bit surprised at my rather unusual power point, which you can see here:
GCLC_Google_Lamadrid (looks better if you play the slide show; also, it’s password protected, so click “read-only”).
As I explained at the event, I decided to run the risk of projecting this ppp when I learnt that Google had pledged before the FTC not to ask for injunctions aimed at protecting its intellectual property 😉 Actually, I’m much more scared of my firm’s format-strict marketing department….
I shared the panel with Cédric Argenton (TILEC) and Anne Perrot (Mapp), both of whom did a great job. Here are their presentations: GCLC2013_Argenton & GCLC_Perrot
P.S. A necessary and fair disclosure. The power point I had in mind became real thanks to Enrique Colmenero, a terribly nice and smart guy, a techie and an entrepeneur who is now fortunately working with me on a few tech-related cases.
Chillin'Competition 