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Archive for the ‘Antitrust Scholarship’ Category

In no man’s land- Case T-355/13, easyJet

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Last Wednesday, 21st January, the General Court rendered an interesting Judgment in Case T-355/13, easyJet v Commission.

It is well-known that the European Commission has always enjoyed great discretion to reject, shelve or prioritize cases, traditionally under the widely used justification (sometimes pretext) of lack of Community/EU interest (as the case-law has, ever since Automec, acknowledged it may do). With the entry into force of Regulation 1/2003 the Commission was granted another two reasons to dismiss cases (not that it needed  them); pursuant to Article 13 it could now dispose of complaints where “one authority is dealing with the case” already (13(1)) or where a complaint “has already been dealt with by another competition authority” (13(2)).

easyJet v Commission concerns the latter scenario.

The facts in a nutshell

In 2008 easyJet lodged three complaints against Schiphol airport with the Netherlands Competition Authority, based on national legislation governing aviation law and on competition law. The authority rejected the complaints by relying on the laws governing aviation (said to be inspired on the competition rules) and by resorting to its priority policy, which enables it to pick the cases with which it deals.

In 2011 easyJet lodged an abuse of dominance complaint with the European Commission. It acknowledged it had lodged similar complaints in the Netherlands and explained that these had never been assessed on the merits.

After two years (so much for the best practices), in 2013, the Commission rejected the complaint arguing, inter alia, that a national competition authority had already dealt with it.

The Judgment

In Wednesday’s Judgment, the Court rules:

1) That the Commission is entitled to reject a complaint which has previously been rejected by a competition authority of a Member State on priority grounds even if the latter has not examined the merits of the case. The Court explicitly endorses an interpretation whereby what’s important is that the national authority has “formally”, however superficially, “reviewed” the complaint (see, e.g. recital 27 of the Judgment).

2) That the above is valid also where, as in the case at hand, the national competition authority rejected the complaint in the course of an investigation conducted under separate provisions of national law (aviation law in casu) “on condition that the review was conducted in the light of the rules of EU Competition law” (see in this regard para. 46 of the Judgment).

In sum, the General Court rules that when a national competition authority rejects a case without having examined its merits, and without having undertaken an analysis on the basis of the competition law rules this is enough to consider that the said authority has “dealt with” the case within the sense of Article 13(2) of the Regulation.

A few comments

It is also widely acknowledged that judicial review in these cases –also starting with Automec– has been rather lenient. At one point some –like me– saw a possible change of trend in CEAHR, but hopes were later dispelled by Protegé (see here for our comments). This Judgment fits within the classic very deferential stream of case law in this domain.

Whereas it’s true that the facts of the case are very specific, my first inclination is not to share the Court’s reasoning; if you see it differently I’d be happy to discuss.

– First of all, I wonder how this all fits with a stream of case-law (actually cited in this very same Judgment), according to which “where the institutions have a broad discretion, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance; those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case”. (In the same sense see also the often forgotten recitals 79 to 83 of Automec itself). Given that the EU Courts require –at least in theory- that the Commission examine carefully all the relevant aspects of a case prior to rejecting it out of lack of priority, why doesn’t the GC require the same from national competition authorities prior to concluding that they have “dealt” with a case within the sense of 13(2)? Moreover, doesn’t the case law require that the guarantees provided by EU Law be also applied by national bodies when applying EU provisions?

– Secondly, I’m not sure the Commission needed this favor in a domain in which it effectively already enjoyed almost unfettered discretion. Indeed, it didn’t need to invoke Art. 13(2); had it simply said the case lacked EU interest it would have got away with it

– The risk, in my view, is that after this Judgments authorities will be able to dispose of cases out of prioritization reasons without having examined first the relevant aspects of the case, at was required –at least formally- by EU case law, just because another authority chose to do just that before.

In a way, the Judgment might accordingly make it much easier for authorities to play hot potato. Wanna-be complainants would be in between, in no man’s land, with the frustrating feeling that no one wants to even cursorily look at their case.

– The Commission would probably reply to the above that national Courts are still well placed to deal with complaints, that they’re moreover under the obligation to examine the merits of cases and that they have wider powers (such as that of awarding damages). Query: I wonder how the experience of losing a case that the Commission thought was obvious before a Belgian Court (see here) may have altered the Institution’s perception as to how well placed judges are to deal with competition cases. I also think that the Commission often trusts judges to deal with cases that would need an EU-wide consistent solution, ideally from an experienced specialized agency. For instance, the Commission very recently rejected a complaint against the UEFA Fair Play Rules alleging that Belgian Courts were well placed to deal with it (see here; query: is that really a case that should be dealt with by a national Court instead of by the European Commission?)

Written by Alfonso Lamadrid

27 January 2015 at 4:24 pm

Antitrust Writing Awards 2015

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AWA

Concurrences has launched the 2015 edition of the Antitrust Writing Awards.

Among the roughly 50 articles selected for each of the “academic” and “business” categories there are many written by friends of this blog, and also some authored by Pablo (namely this one), Nicolas Petit (see here) and myself (here and here) (btw, if you click on any of those you might as well give us a 5 star vote 😉 )

Regardless of the degree of importance that you may give to these things, scrolling through the list of selected articles is a great way of catching up with some of the best scholarship of the past few months (and also with our writings). Being the sort of person that reads a competition law blog, you’ll surely find some stuff of interest in those lists.

 

P.S. An additional thought: I just saw once again the pic of Pablo that appears in the Concurrences website (at one point in time he was the most read author in that site) and couldn’t help thinking that it’s well suited for a before-and-after Men’s Health cover

 

Written by Alfonso Lamadrid

16 January 2015 at 11:44 am

A review of recent EU competition case-law

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Slide MvW-NP

Last week General Court Judge Marc van der Woude (click here to read his Friday Slot interview with us) and Nicolas Petit did a joint presentation on recent EU competition case-law at the Vereniging voor Mededingingsrecht (Dutch Competition Law Association).

The must-read slides are available here: Slides -17 December – Van der Woude and Petit

(A teaser: the slided identify an apparent misquote in the Cartes Bancaires Judgment…).

Written by Alfonso Lamadrid

22 December 2014 at 6:27 pm

International Conference on Cartels- Materials

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The Universidad San Pablo CEU (which thanks to the work of Prof. Jerónimo Maillo has always paid an unusual attention to competition law) and the Spanish Competition Authority recently held an international workshop on Cartels in Madrid which I hear was a great success.

I couldn’t make it, but I’m told that my colleague Konstantin Jörgens did a great job discussing a piece I’ve co-written on the assessment of evidence in cartel cases.

All materials are now available at the website of USP-CEU’s Institute for European Studies , but since we know you’re a bit lazy (no offence) we’ll save you the effort of an additional click:

  • Opening Speech
    Eduardo Prieto
    Download pdf
  • Integrating Regulatory and Antitrust Powers
    Juan Delgado
    Download pdf
  • Calculating fines: Practical problems
    Alberto Escudero
    Download pdf
  • Lessons from the Damages’claims in the Spanish sugar cartel
    Francisco Marcos
    Download pdf
  • EU Antitrust Damages
    Evelyne Ameye
    Download pdf
  • European Commission’s settlement procedure – a success story
    Eric Van Ginderachter
    Download pdf
  • Leniency programmes and the problematic use of confidential information
    Javier Guillen
    Download pdf
  • An economic assessment of the judicial review of the CNMC’s fines
    Javier García-Verdugo
    Download pdf
  • Cartel Settlements
    Jean-François Bellis
    Download pdf
  • Leniency and Cartel Detection
    Juliane Schulze
    Download pdf
  • Sanctioning hard core cartel infringements in EU Competition Law: towards a more compliance-driven approach
    Aaron Khan
    Download pdf
  • Fines and Evidence in Cartels
    Konstantin Jörgens
    Download pdf
  • Prosecutorial & Non-Prosecutorial Systems and the Fight against Cartels
    Marianela Lopez-Galdos
    Download pdf
  • Leniency – Dutch experience
    Pablo Amador Sánchez
    Download pdf
  • ‘How (Not) to Design a Criminal Cartel Offence: Learning from the UK Experience’
    Peter Whelan
    Download pdf
  • Swedish Competition Authority
    Karin Montelius
    Download pdf
  • EU Judicial Architecture Facing Anti-Cartel Enforcement
    Georges Vallindas
    Download pdf
  • Leniency Plus: a Building Block or a Trojan Horse?
    Marek Martyniszyn
    Download pdf
  • Class Actions to Claim Antitrust Damages
    Pablo Gutiérrez de Cabiedes
    Download pdf

 

Written by Alfonso Lamadrid

18 December 2014 at 7:01 pm

The Double Duality of Two-Sided Markets

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Capture

I’m typing live from the Swedish Competition Authority’s top-notch Pros and Cons conference, which in this 13th edition deals with the pros and cons of two-sided markets.

Despite the fact that the conference has been opened by myself and will be closed by Nicolas Petit, I promise this is a serious and highly reputed event.

In my intervention I have focused on what I’ve called the double duality of (practices carried out in) two-sided markets. A paper on the subject is in the pipeline (to be finished when work and baby allow), but most of the views I just developed are contained in this presentation (comments would be very welcome):

Lamadrid_The Double Duality of Two Sided Markets

 

Written by Alfonso Lamadrid

28 November 2014 at 11:26 am

In brief

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– I watched life –rather heard while working- the European Parliament hearings on the new Commissioner for Competition, Margrethe Vestager. She did so well that I couldn’t help thinking that perhaps she should have been given a more politically decisive portfolio (it also made me compare her with many politicians in my home country, but that’s another story).

– It’s been a while since our last quiz. I offer to pay lunch to whoever is able to tell us what was the new and special method for calculating fines that the General Court says to have used in this case (see in para. 5 the mysterious reference to “the Court’s choice of a methodology that diverges on purpose from the methodology laid down in the 2006 Guidelines”).

– Last Friday the Commission approved the acquisition of Whatsapp by Facebook (on which we had commented here). I’m looking forward to reading the decision, but from the press release I gather that the Commission has significantly refined the approach taken in Microsoft/Skype (e.g. no trace of the “inner circle” argument). Don’t know why that would have been necessary considering that, according to the General Court’s Judgment, that decision was irreproachable…

– Remember our discussion on the Groupe Gascogne Judgments (see here and here)? It has now been published on the Official Journal that Gascogne has introduced a damages action before the General Court…against the General Court: see here.

– If you have a minute (which I guess you do if you are reading this) read Kevin Coates’ new post: Gilding Refined Gold and Painting the Lily

– It is still possible to register to the Competition Day conference within the Brussels Technology Days series of events. I’ll be speaking on a panel discussing the Android proto-case together with Trevor Soames, Thomas Vinje and Neil Dryden. For more info, click here.

Written by Alfonso Lamadrid

7 October 2014 at 6:40 am

Microsoft’s Android Anathema

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by Geoffrey Manne

I want to thank Alfonso and Nicolas for letting me post here. I’ve been following the discussion of the most recent Google competition case in Europe here at Chillin’ Competition (click here for Alfonso’s comments and here for Pablo Ibañez Colomo’s) and elsewhere with great interest. And I’ve written about it back on my home blog in the US, Truth on the Market. But I have a keen interest in discussing the case with a more European audience, so when Alfonso asked for thoughts about the case, I gladly took him up on it . The following is a re-publication of my post, Microsoft’s Android Anathema. I’d welcome any feedback. Thanks!

 

Microsoft wants you to believe that Google’s business practices stifle competition and harm consumers. Again.

The latest volley in its tiresome and ironic campaign to bludgeon Google with the same regulatory club once used against Microsoft itself is the company’s effort to foment an Android-related antitrust case in Europe.

In a recent polemicMicrosoft consultant (and business school professor) Ben Edelman denounces Google for requiring that, if device manufacturers want to pre-install key Google apps on Android devices, they “must install all the apps Google specifies, with the prominence Google requires, including setting these apps as defaults where Google instructs.” Edelman trots out gasp-worthy “secret” licensing agreements that he claims support his allegation (more on this later).

Similarly, a recent Wall Street Journal article, “Android’s ‘Open’ System Has Limits,” cites Edelman’s claim that limits on the licensing of Google’s proprietary apps mean that the Android operating system isn’t truly open source and comes with “strings attached.”

In fact, along with the Microsoft-funded trade organization FairSearch, Edelman has gone so far as to charge that this “tying” constitutes an antitrust violation. It is this claim that Microsoft and a network of proxies brought to the Commission when their efforts to manufacture a search-neutrality-based competition case against Google failed.

But before getting too caught up in the latest round of anti-Google hysteria, it’s worth noting that the Federal Trade Commission has already reviewed these claims. After a thorough, two-year inquiry, the FTC found the antitrust arguments against Google to be without merit. The South Korea Fair Trade Commission conducted its own two year investigation into Google’s Android business practices and dismissed the claims before it asmeritless, as well.

Taking on Edelman and FairSearch with an exhaustive scholarly analysis, German law professor Torsten Koerber recently assessed the nature of competition among mobile operating systems and concluded that:

(T)he (EU) Fairsearch complaint ultimately does not aim to protect competition or consumers, as it pretends to. It rather strives to shelter Microsoft from competition by abusing competition law to attack Google’s business model and subvert competition.

It’s time to take a step back and consider the real issues at play.

(Click here to continue reading)

Read the rest of this entry »

Written by Alfonso Lamadrid

3 October 2014 at 10:10 am