Author Archive
38th Annual Conference on International Antitrust Law and Policy- A virtual seat for Chillin’Competition readers
The 38th edition of the Annual Conference on International Antitrust Law and Policy directed by Barry Hawk at Fordham Competition Law Institute will take place in New York on Wednesday, September 7 and Thursday, September 8, 2011. As usual, the conference will feature la crème de la crème in international antitrust (see here for this edition´s truly impressive programme).
As long-time admirers of this conference and avid readers of its published annual proceedings, Nicolas and I are very glad to offer our readers what we see as a unique chance to contribute to the discussions that will take place there this year. Here’s how:
Amonsgt other most interesting panels, on this upcoming edition there will be a roundtable on “European Competition Enforcement”. The line-up of panelists for the roundtable on this topic is certainly unmatchable: Alexander Italianer (Director General, European Commission); Bruno Laserre (President of the French Conseil de la Concurrence); John Fingleton ( Chief Executive at the UK´s Office of Fair Trading), Andreas Mundt (President of the Bundeskartellamt) and Manuel Sebastiao (President of the Portuguese Autoridade da Concorrencia). The task of chairing a bunch of chairmans will fall upon the shoulders of the competition lawyer I´ve always looked up to Luis Ortiz Blanco.
I will be assisting Luis in the drafting of his written contribution, and while dicussing about it an idea sprang to mind. Given the surprising and rising number of competition law experts from all over the world who read this blog, we thought it could be very interesting to ask you to share your ideas on issues related to European Competiton Enforcement that you think should be dealt with by the speakers taking part in this roundtable. We proposed it to Barry Hawk and he also thought it could be interesting, so that’s what we’re doing now.
If you wish to directly contribute to this top-level discussion with your thoughts or experiences on issues related to European competition enforcement, please send them to us preferably as comments to this post. Please note that all of your suggestions will be seriously considered as potential issues to be thrown to the panel, but also that we cannot guarantee that all of them will make it there.
Thanks go to Barry Hawk and Luis Ortiz Blanco for this opportunity. We look forward to hearing about your ideas!
Inside Job
Yesterday was a public holiday in Brussels and I took part of the day to watch Inside Job, the Oscard winning documentary which attempts to trace back the origins of the financial crisis. The documentary is certainly controversial, but I believe worth watching. It is a strong critique of the deregulatory policies that had prevailed in the US since the years of the Reagan admministration. For our purposes, it suffices to realize that the rationale underlying those policies is exactly the same as the one driving those who advocate loosening or even repealing antitrust enforcement. In fact, Alan Greenspan, who is blamed in Inside Job as one of the individuals responsible for these policies, authored some years ago an article on antitrust law. Many of his views on economic policy have recently been proven wrong; could the same be said of his ideas on antitrust? I would say the answer is quite obvious. For all its initial incoherences and its current flaws, antitrust enforcement is as indispensable as financial regulation; hopefully we won’t have to learn this the hard way.
In any case, if you can, I very much recommend taking some time off to watch this movie and to read Greenspan’s very brief piece so that you can arrive to your ouwn conclusions.
Indian Merger Control Rules Enter into Force
June 1st 2011 will be remembered in the history of international antitrust as the date when Indian rules establishing a system of merger control entered into force. Considering India´s rapid rise as an economic superpower it´s safe to guess that India will soon be at the forefront of international antitust.
The text of the merger regulations is available here.
From now on we will certainly monitor any interesting developments coming from India.
Best of lucks to the Competition Commission of India!
The Microsoft and Telefónica hearings-towards stricter judicial review of Art. 102 TFEU cases?
Something might be moving at the European Courts.
According to some of the people who attended the hearings held last week before the General Court on the Microsoft and Telefónica cases, the Judges in Luxembourg showed an unusual interest in the details of both cases and asked an unusual number of well-thought out questions. This was also reflected on the duration of the hearings: I hear that the one on the Telefónica case finished around 21.00 pm, which is quite unusual too.
According to my sources, the members of the Second Chamber were particularly eager to listen to the oral arguments on the Microsoft case. (By the way, some of Nicolas´opinion with regards to this case have been widely quoted in the media; see here).
It will be most interesting to see how the General Court deals now with the second part of this case, particularly given that the Judgment issued with regards to the main original decision may not have pleased all of its members.
In this sense, it is worth noting that Judge Forwood (President of Chamber) is the Rapporteur on this case and the one who asked all questions. Judge Forwood has been reported to be amongst the 6 Judges who lost the vote on the Microsoft Judgment by a margin of one (click here for more info on this).
The EU Courts´ stance in relation to the appropriate degree of judicial review in abuse of dominance cases will be put to test in other pending cases. The ECJ´s Judgment on the appeal against the General Court´s Judgment in Tomra could be of particular interest for the future in light of the limited review undertaken by the GC. In fact, I hear that the Intel case -currently pending before the GC- may be slowed down so as to wait for the ECJ to state its position on the obligations incumbent upon the Commission and the Courts with respect to the assessment of the effects of a given practice.
Overzealous antitrust enforcement in Spain?
A couple of days ago Nicolas wrote a post reporting the concerns expressed by some experts in relation to a possible enforcement gap in Italy in light of the fact that the Autoritá Garante has been mainly focusing on investigating unfair competition cases rather than on pursuing antitrust cases. Apparently, some of the lawyers who attended the conference at which Nicolas was present bemoaned these “dark times for antitrust in Italy”.
The situation in Italy, if true, appears to be in stark contrast to the one we have in Spain, where the Comisión Nacional de la Competencia is currently showing that it is one of the most overzealous enforcers in international antitrust.
In the past 18 months the CNC has initiated 70 formal investigations concerning all sorts of practices in a wide array of markets, and has adopted 20 fining decisions (click here for more details; I know there´s even an inside-joke at an american firm in Brussels which is based on spotting new investigations undertaken by the CNC). These numbers don’t include neither informal investigations nor proceedings initiated by regional competition authorities. Who said Spaniards aren’t productive?
From a strictly numerical point of view, these are clearly not at all dark times for antitrust in Spain. Indeed, there’s plenty of work for Spanish competition lawyers.
However, when looked at from a qualitative standpoint, the story seems a bit different (next week I´ll post a comment on the reasoning of the joke major decision adopted last week sanctioning electricity companies with 61 million euros and you´ll see what I mean). The CNC has skilled staff but pehaps their willingness to have on their plate more than what they can deal with is at the root of some questioable prioritization decisions and of some (too many) weak reasonings (which nevertheless generally withstand judicial review…)
The CNC must be credited for its very good job in bringing competition law issues to the forefront of the public debate, but it also needs to understand that Spanish over-enforcement is an undesirable and harmful to vigorous competition on the merits as the alleged Italian under-enforcement.
Are above-cost selective price cuts abusive? AG Mengozzi´s Opinion in Post Danmark (Case C-209/10)
Yesterday, Advocate General Mengozzi delivered an interesting Opinion in the Post Danmark v Konkurrenceradet case (C-209/10) (Not yet available in English).
This case has its origin on a preliminary reference submitted by the Danish Hojesteret which asks the ECJ whether it can be concluded that a dominant company which sets selectively low but non-predarory prices to be applied to three large customers of its main competitor can be held to have abused its dominant position when there is no evidence of any strategy aimed at excluding its competitor. The Danish Court also asked about the relevant additional elements that must be taken into consideration before concluding that selective above-cost pricing is illegal.
One of the main remarkable aspects of this Opinion is that it names Nicolas as authorized doctrine (this reflects the current level of antitrust doctrine.. ) 😉 But we´ll come back to that later.
Mengozzi´s Opinion is interesting in several respects. If you´re interested on a fairly detailed and hastily written identification of its highlights, click here to keep reading.
(Warning: as many cost-related discussions this one can be a bit tedious for some lawyers).
Rock and Law + The Legal Run
In the past few days we have posted stuff on Competition Parties, Competition Tourism , Fine Arts in Brussels and even on competition law manga. To complete this string of posts on competition law and leisure time we wanted to publicize and praise a couple of worthy initiatives undertaken by some law firms and in which a more than fair representation of competition lawyers (as well as a handful of readers of this blog) are participating:
The first one is “Rock and Law” a beneficial concert night which will take place in Madrid on the 16th of June with the participation of rock bands from Garrigues, Clifford Chance, Freshfields, Uría Menéndez, Ashurst, Cuatrecasas, Gómez Acebo &Pombo, CMS Albiñana, and Baker& McKenzie. Last year this event was a tremendous success, and I bet that this edition will top its predecessor.
Competition lawyers will be very well represented in Rock and Law with the band “The members of the Bar” (also called “The Whistleblowers” when under a different formation); two of their components , Carlos Vérgez and Enrique Carrera , are (apart from readers of this blog and good friends) almost as good with the guitar as they are with competition law (and I mean this as a compliment!)
The second initiative I was referring to is “The Legal run”, a fundraising activity organized by the Brussels in the framework of the Brussels 20 K, which will be taking place next Sunday. Although not necessarily registered through the Legal Run, a good bunch of competition lawyers will be taking part in this race (although fewer than expected; a number of ex-Howreys had reportedly been registered by the (ex)firm but their entries were subsequenlty withdrawn without notice. What are liquidators for if not for these things?). We´re willing to offer one of our already famous prizes to the fastest competition lawyer taking part in the race, so feel free to send us your times.
Fine Arts in Brussels
In the past few days both Commissioner Almunia and Cecilio Madero, Deputy Director General for Antitrust, have spoken publicly about sanctions for breaches of EU Competition law (see here and here). Both have praised the current EU enforcement system as well as the changes that have been introduced to improve enforcement practice, namely the settlement procedure.
In his speech, Mr. Almunia also made a very welcome announcement. From now on “the Commission will indicate already in the Statement of Objections itself, the elements for the calculation of the fine such as the value of the cartelised sales – which is a critical factor – but also, for example, an indication of the gravity and issues of recidivism”. I see this as a great development, and one for which the European Commission must be congratulated.
But there are still a few issues which, in my view, should also be reconsidered by the Commission. Some opinions and suggestions in this regard are developed in an article I´m specially proud of, titled “Fine Arts in Brussels, Punishment and Settlement of Cartel Cases under EC Competition Law”. This article was authored by Luis Ortiz Blanco, Angel Givaja and by myself; it was presented by Luis Ortiz Blanco at a conference in Treviso in May 2008 and later published on the book Antitrust, Between EC Law and National Law.
Until now this article had never been available online, so we´ve decided to remedy that and make it available to the readers of this blog. As you will see, the arguments in this article are accompanied by Roman numbers; those numbers refer to paintings which graphically illustrate those ideas.
Here it is:
Net neutrality and Antitrust
The European Commissioner for the Digital Agenda, a certain Neelie Kroes, is now in charge of dealing with European policy with regards to net neutrality. This hot issue, which is now her current priority (for her latest speeches on this subject see here and here), is the subject matter of a Commission´s Report she presented to the European Parliament on April 19th.
Net neutrality activists have heavily criticized the Report alleging that it endorses a “wait and see” approach in spite of the identification of alleged instances of blocking or throttling of certain types of traffic. The Report states that the Commission and BEREC are currently investigating those alleged practices and that “[i]n this regard, the Commission reserves its right to assess under Articles 101 and 102 of the TFEU any behaviour related to traffic management that may restrict or distort competition“. One should however note that the Report doesn´t exclude the possibility that an ad hoc regulatory framework might be adopted.
On the other side of the Atlantic the debate on the interface between antitrust and regulation on this same area is also a “trending topic”. Speaking last Thursday before a Subcommittee of the US Congress, the President of the US Federal Communications Commission expressed his views on this debate stating that:
“while critically important, antitrust laws alone would not adequately preserve the freedom and openness of the Internet or provide enough certainty and confidence to drive investment in our innovation future.
(…) antitrust enforcement is expensive to pursue, takes a long time, and kicks in only after damage is done. Especially for start-ups in a fast-moving area like the Internet, that’s not a practical solution”.
He also replied to the Republican´s party proposal to enact specific antitrust laws to regulate internet neutrality:
“Some have suggested that Congress adopt new antitrust laws addressing Internet openness. But that too would be a problematic approach, ill-suited to the fast-changing nature of Internet technology. As the Supreme Court has pointed out, while statutes are hard to change in light of new developments in network technology or markets, expert administrative agencies have flexible processes for dealing with the unexpected and are, accordingly, better suited for handling this particular issue”. (See here for his complete statement).
At first sight, my -rather simple- take is that if there really were a need for intervention (not having devoted time to this issue I wouldn´t dare to express an opinion on this point) antitrust and regulation could play together and should be seen as complements rather than as substitutes (although that´s certainly much easier to say in the EU in light of case law such as Deutsche Telekom than in the EU, where the Supreme Court´s Decision in Trinko enormously complicates antitrust challenges to practices already subject to regulation on the part of the FCC).
This could be an interesting topic a discussion and we haven´t paid much attention to it here. We´d be glad to open the floor to any of our readers who might have some more developed thoughts on it. Anyone?
Weekend readings – Law firms: a less guilded future
I would very much recommend you to take a moment to read an excellent piece published on the latest issue of The Economist. (Thanks to Mark English for calling our attention to it)
At a moment where some are reporting on the pick up on profits and revenues at Big Law, this article from The Economist contains a very insightful analysis of the many challenges that lie ahead for the legal profession, not all of which are cyclical. I tend to agree with a lot of what’s said there (except, maybe, for that last phrase on how “a firm’s only real asset are its partners”…).
Click here to read the online version.
And, although I’m sure most of you have at least heard about it, those interested on further readings on the future of the legal profession should definetely read Susskind’s brilliant book The End of Lawyers.
Chillin'Competition 