Archive for the ‘GCLC’ Category
Summertime developments in EU competition law (tax rulings, cement, Section 5 of the FTC Act and more on Google)
Lots of things happened while this blog was closed for holidays; here are a some comments on a selected few of those developments:
–The news: On 20 July the European Parliament issues its Draft Report on tax rulings unusually pre-concluding that “without prejudice to the outcome of the Commission’s ongoing state aid investigations” there has been a breach of State aid rules (MEPs appear to be getting into a habit of giving ex ante opinions in competition cases…) and –perhaps more understandably- suggesting the Commission to adopt guidelines on State aid and transfer pricing. A comment (and a bet): We have commented on these cases before, but this time I’m willing to bet a round of beers on the prediction that the Commission will not order any recovery in these cases and will rather use them to send a signal for the future. Any takers? [By the way, those interested in the subject should attend the Brussels School of Competition’s Morning Briefing about State aid and Tax Rulings on 16 October].
–The news: On Friday 31 July the Commission announced the closure of its longstanding investigation into the cement sector explaining that the evidence gathered was not “sufficiently conclusive”. A comment: As you might also remember some companies (including my client in the case) appealed the information requests sent out by the Commission. As explained in the Judgment, as part of the judicial proceedings in our specific case we managed to have access to, and to exceptionally lodge observations on, the Commission’s evidence at a pre-SO phase (for my comments on these Judgments, click here). Some parties appealed the General Court Judgments (not all, for, understandably, practical realities often trump theoretical interest) and the ECJ may say interesting things, so keep an eye open for those.
–The news: On August 13 the U.S Federal Trade Commission issued a Statement of Enforcement Principles that will guide its application of Section 5 of the FTC Act, a provision against “unfair methods of competition” that goes beyond the prohibitions in the Sherman or Clayton Acts. Essentially, the FTC has committed to align the enforcement of Section 5 with that of the Sherman Act, effectively adopting a rule of reason analytical framework. Comment 1: the Statement explains that the FTC is “less likely to challenge an act or practice as an unfair method of competition on a standalone basis if enforcement of the Sherman or Clayton Act is sufficient to address the competitive harm”. Well, isn’t that stating the obvious? Also, the language (“is less likely”) shows some convergence at both sides of the Atlantic when it comes to sort-of-soft law: the FTC seems to have learnt from DG Comp’s guidance in this respect… Comment 2: I always thought that Section 5 was the U.S. way of making up for a sometimes inconvenient strict interpretation of the antitrust rules that does not cover practices that could be challenged with a wider, also sensible interpretation. Just to give you to examples: the Ethyl case, concerning a Section 5 challenge against facilitating practices could perhaps have been brought under Section 2 if US antitrust law had a notion of individual abuse of collective dominance like we do in the EU following the Irish Sugar Judgment. Also, the Intel case under Section 5 would seemingly also have been equally possible to challenge if we had a more nuanced approach to refusals to deal concerning interoperability.
–The news: Google’s lawyers didn’t rest during the holidays either. A few days ago Google sent its response to the Commission’s Statement of Objections (and its General Counsel wrote a blog post about it, available here). All this generated yet another news cycle; journalists don’t get tired of this story, as don’t lawyers, who keep jumping in at the smell of possible blood. The non-comment: We have no real new info on the case so we have no comment beyond the many written in the past.
And now, a quick look to the future and to some forthcoming events:
- On Friday, 4 September, the Liège Innovation and Competition Institute is holding, in Brussels, an interesting event on the Huawei/ZTE Judgment (for my hasty first comments and some interesting, more well thought-out comments by others, see here).
- On September 29 a new edition of the 9 month LL.M course will start at the Brussels School of Competition. Registrations are still open and the program is available here.
- And on Thursday 24 September ERA and the European Data Protection Supervisor will be hosting a must-attend event (at least for me since I’m chairing part of it) titled Competition Law rebooted: Enforcement and personal data in digital markets“. For more, see here.
As you know, Pablo and myself -and Nico too- are quite involved in a Course on EU & Spanish Competition Law Course that I co-direct in Madrid with Luis Ortiz Blanco. Aside from being a great pretext for me to go home once in a while, the fact is that we are getting increasingly better at bringing good competition law action to Spain.
The two upcoming seminars are very good examples:
– On Thursday and Friday this week (5 and 6 March) we will be holding a seminar on State Aid coordinated by José Luis Buendía and Jorge Piernas which could hardly be better. I truly don’t think there’s a better way to learn all you need to know about State aid in 48 hours. In that time a list of top-notch speakers will cover all the essentials of State aid law as well as the most recent hot topics. Speakers include (by order of appearance): Jose Luis Buendía (Garrigues & King’s College London), Jorge Piernas (University of Murcia), Leigh Hancher (University of Tilburg), Piet Jan Slot (University of Leiden), Juan Arpio (University of Zaragoza), Deborah Heredia (Spanish Ministry of Foreign Affairs), Carlos Urraca (European Commission Legal Service), Joaquín Fernandez (DG Competition, European Commission), Alejandro Requejo (Compass Lexecon), Miguel García Caba (Spanish Professional Football League), Ramón Terol (University of Alicante), Juan Pedro Marín (SEPI); Elisabetta Righini (King’s College London), José Manuel Panero (Garrigues) and Patricia Vidal (Uría Menéndez). More info is available here.
12h –14h Competition, IP and technology
- Introduction to the EU copyright regime and to its reform, Eleonora Rosati, Lecturer, University of Southampton
- Copyright licensing and competition law – Pablo Ibañez Colomo, Associate Professor, LSE
- Competition law and IPR exhaustion– Alvaro Ramos, Legal Director, Cisco Systems
16h- 18.30h Competition law and distribution in the online world
- An introduction to competition law and online distribution- Donald Slater, Partner, Ashurst
- The economics of online distribution- Valérie Meunier, Vice-President, Compass Lexecon
- Emerging challenges for competition law in online distribution – Miguel Pérez Guerra, Competition Counsel EMEA, Google
- Emerging challenges for competition law in online distribution – Robert Mahnke, Global Competition Counsel, eBay
18.30h – 20h Setting the online playing field
- Competition law and online search- Thomas Graf, Partner, Cleary Gottlieb Steen & Hamilston
- The double duality of two-sided markets- Alfonso Lamadrid, Garrigues (yes, I’m repeating myself, but I have 3 Hearings in Luxembourg that week, and since I get to co-decide on the programme…😉 )
- The fluctuation of substantive standards in high tech markets- Pablo Ibañez Colomo, Associate Professor, LSE
More info on this seminar (which will be conducted fully in English and under Chatham House Rules) is available here: Seminar Competition Law in the Technology Sector
I recently had to devote most of my non-billable work to finishing a few publications (the fact that after a few missed deadlines I was almost under death threat from editors also played a role) and preparing some courses. As if there weren’t better things to do with one’s time…
Anyway, since I did the work, I thought that it could perhaps be useful to post it or refer to it here, both to justify myself and in case any of you might find them interesting or have comments. These “non-working” papers include:
– A paper on “The Double Duality of Two-Sided Markets” which, to a large extent, is a beefed up version of my speech (the ppp is available here) at the Swedish Competition Authority’s Pros and Cons Conference back in November. The editors of Competition Law Journal have kindly offered to publish it, so it will appear there soon. The paper posits that competition law enforcement regarding multi-sided platforms may have not always accounted for the ambiguity of business practices carried out in these settings and attempts to identify the causes at the root of this problem and to propose some solutions. In essence, my take is that multi-sided platforms raise old questions but with renewed intensity, and that this must force us to go back to basics and recall some general principles that we should never lose sight of.
– A presentation on the Cartes Bancaires Judgment (here: Some additional reflections on Cartes Bancaires_Lamadrid ). It’s titled “some additional reflections” because it followed previous interventions at a seminar on the part of Javier Ruiz Calzado (Latham&Watkins; his very good ppp is also available here: Cartes Bancaires_Ruiz Calzado ) and Nicholas Khan, from the European Commission’s Legal Service. It was a privilege to share the panel with them.
absurdly lengthy not so succint paper I’ve co-written with my colleague Ana Balcells on cartel evidence in Spain: La prueba de los cárteles en España (Lamadrid_Balcells), forthcoming in JM Beneyto y J Maillo (Dirs): La lucha contra los cárteles en España, Aranzadi, 2015.
– Also, a few days ago the founder of this blog, Nicolas Petit, asked me (with a most kind anticipation of less than 24 hours…) to conduct a case study on the Google investigation at the Brussels School of Competition. It was a very interesting exercise. I only directed the debate asking questions and linking issues together and it was the students who brilliantly taught themselves and arrived to their own conclusions (I’m being nice to them because I told them that suscribing to the blog is a prerequisite for passing, so I assume they’re reading this). The legal issues underpinning the case (which have not always received the necessary attention) are very well-suited to reflect about some basic concepts of Article 102. In fact, Pablo also did this with his students at LSE a few days ago. Just in case any of you is interested in conducting a similar exercise, here is the (very hastily drafted) list of questions I used: Google Case study – BSC_Lamadrid.
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):
-The talk of the town these days –as reflected in our most recent posts- is about “Lux leaks” and the uncomfortable position in which it places President Juncker, State aids and our victory in Court last week. But there’s a paradox regarding these cases that has surprisingly not received much attention: do people realize that if Luxembourg’s rulings were declared to constitute illegal State aid the result would be that Luxembourg would receive several thousands of millions of euros??
– This blog is intended not only for us to get things off our chest, but also to foster some debate. In this context, I would suggest you to read the most recent comments on this and this post. You won’t find that sort of discussions in many other places and this is what makes this blog different; we’re very fortunate to have such active and sapient readers and we probably don’t emphasize that enough.
– The comments I just referred to reveal that there are still a few open issues regarding, in particular, the concept of restrictions by object and on how they can avail themselves to objective justifications. For those interested in clarifications, we remind you about the forthcoming ERA event on the subject (Restrictions by Object after Cartes Bancaires and the Commission’s initiatives); for more info click here.
– Btw, for those needing clarification on a wider set of issues, we will soon be announcing the program of the 18TH edition of the Competition Law Course that Luis Ortiz Blanco and myself direct in Madrid from January to March, with the participation of, among many others, my former and my current blogging partners. If you are interested in attending or know of someone who might be, you can drop me a line (firstname.lastname@example.org). This course is, by the way, where I first met Nicolas, interestingly through the intermediation of his subsequent replacement on this blog, Pablo.
– Thanks to Competition Policy International we have found this piece at the intersection of competition law and religion titled Is there a Vatican School for Competition Policy? For the record, we were pioneers in writing on the link between religion and antitrust: see my (2010!) post on An Antitrust Challenge to God
– Our friend Stephen Ryan, now at the Hong Kong Competition Commission, has informed us about a new media campaign initiated by the authority to inform the general public about the benefits of competition (see here and here). We’ll add these to our list of candidates for the Antitrust Oscars. The authority is also active on other fronts, having just released draft guidelines on the interpretation of the Competition Ordinance for public consultation.
My inactivity on the blog this week has to do with a couple of Court deadlines and me finding my way through the intrincacies of fiscal rules, telecomm technicalities and trading jargon on different matters (ah, the renacentist life of the competition lawyer…). I’ll try to compensate for my non-posting guilt feeling with some advertising:
-Given that our previous post on the Commission’s new initiative for recruiting competition specialists seems to have attracted quite some interest, we thought that you would also be interested in the information published today regarding all details of the competition competition; if so, you can read all about it here.
-Many experts on EU Competition Procedure will be gathering in Brussels on 6-7 November at the Global Competition Law Centre’s 10th annual conference titled “10 years of Regulation 1/2003: challenges and reform“. The programme and all registration info are available here.
– The 9th Junior Competition Conference -set up by the editors of the Competition Law Journal and which we have always supported and gladly advertised- will be taking place on Friday 6 February 2015. It will have two themes: (1) The New Frontier: Competition Law and the Financial Services Sector; and (2) Control of Unilateral Conduct and the ‘Goldilocks’ Dilemma: Too Much, Too Little or Just Right? For details of the Call for Speakers, please visit this web page. If you would like to speak at the conference, please contact the organizers at email@example.com by 21 November 2014 with an expression of interest and a short outline of your proposed topic.