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The Friday Slot- Eric Gippini Fournier

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You all are familiar with leading cases in the EU competitition law canon such as  Michelin II, Pre-Insulated pipes, Métropole,  O2, Cementbow, IMS, Endesa, Aer Lingus (in the Ryanair merger case), Glaxo Smithkline, Lélos, Astra Zeneca, Wanadoo, Telia Sonera, KME, Teléfonica or Tomra.  A good question for one of our quizzes would have been to ask what it is that all of these cases have in commmon. The right answer would be that in every single one of them one of the Legal Service’s agents representing the European Commission in Court was Eric Gippini-Fournier.  

Today’s Friday Slot features an interview with him. Eric is one of my (I don’t use the default plural here because Nico and Eric have not yet properly met, although this will be fixed soon) favorite people in this small competition law world. After reading his answers to our questionnaire you will understand why. Above all, Eric is an incredibly nice, reasonable, gentle and frank guy. But he’s also a brilliant and intellectually honest jurist, a tough adversary, and -like Fernando Castillo de la Torre and other members of the Legal Service– he’s a living encyplopedia on competition law. Eric is not contaminated or constrained by some of the oddities that at times surround the profit-making side of this business, and this often gives his views an added interest. On top of all of the above, we also share a taste for late Sunday lunch at Roi du Poulet…  We are very thankful to him for having accepted our invitation to appear here.

Oscar” of the best antitrust law book? Non-antitrust book?

The best antitrust books are slow food, the result of a long process by one or two cooks, not more. Areeda/Turner, Bork’s “Paradox” and Waelbroek/Frignani are great examples. Among recent books, I would nominate Luis Ortiz Blanco’s “Market Power in EU competition Law”.

Non-antitrust books? “Belle du Seigneur” by Albert Cohen comes to mind.  Lately I have enjoyed Art Spiegelman’s “Maus“, and two great biographies, of Benjamin Franklin and of Franklin D. Roosevelt (both by Henry Brands).

Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

My nominations in the first category will not necessarily please the blog hosts. They go to the ECtHR (Menarini Diagnostics), the ECJ (TeliaSonera, KME Germany and Tomra), and the EFTA Court (Posten Norge). On the “bad” side, I have misgivings –but only that, misgivings– about the hands-off approach to reverse payments, most recently by the court of appeals for the 11th circuit in Watson Pharmaceuticals.

Let’s do it like economists => assume that you could change rules, principles, judgments, institutions in the current EU antitrust system. What would you do?

I am not fond of the law on exploitative abuses, in particular excessive pricing. In fact I am not sure that prosecuting excessive pricing –essentially a consumer protection issue– fits with the overall design of EU antitrust, with its focus on protecting the competitive process.

I would revamp evidence rules before the EU courts, for example re-introduce the old ECSC rule that, in case of appeal against a Commission decision, the entire case file is automatically transmitted to the General Court. Right now the court file includes only evidence provided by the parties, which gives an incomplete view of a case.

Average working time/week?

Probably too much. I don’t count the hours but it should be possible to do the math. At any given time I have 40 or 50 cases pending before the EU courts and in a typical year I present oral argument in eight to twelve hearings, sometimes more. I should say that litigation is less than half of my workload.

Why do you work in antitrust law? How did you first get into it?

My home university inSpain has a tradition in IP and competition law. By law school graduation, the Merger Regulation had just been adopted, and it was the subject of my thesis. I then studied EU and U.S. antitrust at Bruges and Berkeley, with Robert Kovar and Einer Elhauge. These great teachers, and others like Val Korah and Louis Vogel inspired me. I also did some basic microeconomics coursework at LSE when I was a teaching assistant in Bruges and we were about to introduce a microeconomics course for lawyers.

All this was twenty years ago. What keeps me interested is that each antitrust case requires me to study and understand a different technical and economic reality: how Tetra Paks or CPUs are made, the intricacies of copyright management societies or the details of pharmaceutical pricing in Spain.

Most interesting, intense or funny moment of your career?

Around 1998 I had a hectic, but very interesting time with sports-related antitrust issues like FIA/Formula One and the FIFA player transfer regulations. I have had intense hearings over the years, including GlaxoSmithKline, Telefónica, and many others.

Funny moments came especially in non-antitrust cases. In a case involving regulatory obstacles to selling nutritional supplements, we arranged to meet with the complainant’s board of directors. Four huge bodybuilders showed up, each 150 Kg of muscle and built like trucks! We immediately agreed with everything they said and promised swift action.

Your role model (if any) in the antitrust community?

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Written by Alfonso Lamadrid

11 May 2012 at 6:08 pm

The European Commission’s Legal Service

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One of the good things about this blog is that it enables us to give credit to the people who, in our view, deserve it.

Today it’s the turn of the European Commission’s Legal Service.

Why them? Because many of the most brilliant jurists and many of the most reasonable and kind people that I have come across in my professional life were/are members of the Commission’s Legal Service. We won’t cite individual names because it would be unfair to those not mentioned, but also because the list would be too long.

These guys know competition and State aid law inside out, but they also know there are other provisions in the EU Treaties; they have the uncomfortable mission of second-guessing the case team’s work and of facing lawyers in Courts; they don’t have the same means and tools that big firms have; they sometimes have to fight armies of lawyers with the help of only one or two colleagues; they have an unbearable workload (Fernando Castillo de la Torre recently told us that he’d had more than 20 oral hearings last June!); and still they win most cases. And when they win there are two options: (a) either other people get the credit; or (b) everyone blames the Court for getting things wrong. That’s not always fair; I have worked with, and most often against, them, and in every single case they did an outstanding job.

Were Court submissions in the EU not confidential (query: should they?), people would realize the importance that the Legal Service has had in shaping up competition law.

All of this sounds like we are buttering them up but, frankly, it´s what we think. We seldom see their work praised in public (praising the ones on the other side of the table is not always common whereas demonizing the Commission is), so we decided to take it upon us to say that the work these guys do is to be acknowledged.

We said above that some of the most brilliant and nicest people in the competition law we’ve met in the competition law world belong to the Legal Service. We are very proud to anticipate that one person who fits perfectly into this description, Eric Gippini-Fournier, will be our next “Friday Slot” interviewee. (P.S. Click here for the interview)

Written by Alfonso Lamadrid

8 May 2012 at 6:18 pm

Reading Competition Law Books

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In our “Friday Slot” interviews we ask what competition law book deserves an Antitrust Oscar. A frequent reply from our interviewees is that they do not read competition law books but rather consult specific sections of such books when they are looking for something in particular.

We don’t necessarily agree with this view. Even though there are certainly some books that we only use for reference, we believe that some of the best books on antitrust are texts that you will not come accross if you’re just looking for references or for the answer to a very particular problem.

In our very own experience, reading certain competition law books written by people who clearly outsmart us has provided us good general overview of issues that we may not had/have yet seen in our professional life, and, most importantly, it has obliged us to reflect and think about what makes sense and what doesn’t in a discipline to which we devote an insane proportion of our life. Personally, we have learnt most of the theory we know from books and not from attending courses, seminars or conferences, no matter how good they were.

The obvious -and reasonable- response is “if, as you say, you already devote an insane amount of time to this, why on earth would you spend non-working time reading about the same subject?”. That’s partly true, but, the way we see it, it is one thing to spend your time working on a particular issue, and a very different one to take the time and distance (not to let the trees hide the woods) to reflect on the reasonableness of the overall discipline in which we are immersed.

We’re not saying that we do -nor, of course, that anyone else should- read competition law books instead of non-competition law books. No matter how good a competition law book is, non-competition law books teach you or open your mind to much more important stuff. We are just saying that -when we’ve had the time- we have found it useful to include some competition law books in our reading list.

A (certainly non-exhaustive) selection of some of the competition law books that make a most interesting read could feature Hovenkamp’s “The Antitrust Enterprise“; Areeda and Kaplow’s “Antitrust Analysis: Problems, Text, Cases“; Bork’s “The Antitrust Paradox“; Posner’s “Antitrust Law“; Amato’s “Antitrust and the Bounds of Power“; Luis Ortiz’s “Market Power in EU Antitrust Law“, Giorgio Monti’s “EC Competition Law” or Odudu’s “The Boundaries of EC Competition Law; The Scope of Article 81“. There are many other great books but we can’t name them all (suggestions in the form of comments will be welcome!).

The ones I’m currently in the (slow) process of reading (alternating from one to the other) are “Creation without Restraint: Promoting Liberty and Rivalry in Innovation” by C. Bohannan and H. Hovenkamp;  Kevin Coates’ “Competition Law and Regulation of Technology Markets” and Einer Elhauge’s (Ed), “Research Handbook on the Economics of Antitrust Law“. I´ll also be happy to read Nicolas’ most recent book ; sorry, wrong link; this is the right one!  😉 I intend to post a review of these books here once I´m done with them.

Regardless of all the above, my personal favourite antitrust book ever is one that I have only used for specific consultations and that I will most likely never read: the Treatise written by Areeda and Hovenkamp: “Antitrust Law: An Analysis of Antitrust Principles and their Application“. The reason why I know I won’t read it is that it looks like this:

Three additional comments:

– Herbert Hovenkamp -whose work is referenced above a few times- is clearly one of the 4 or 5 people from whom I’ve learnt more antitrust law, and the only one of these (aside from his co-author late Philip Areeda) whom I have never had the chance to meet in person (which again proves the importance of competition law books). We are very proud to anticipate that our next Friday Slot interview is with him!

– There is much to be said about the pricing of many of these books. But we’ll deal with that in a separate post.

– I recently recommended here a non-competition book -in Spanish, though- and a few (four) of you have sent emails saying that you loved it, which is nice to hear. Here is another suggestion, in English this time: A Heartbreaking Work of Staggering Genious.

Written by Alfonso Lamadrid

2 May 2012 at 5:55 pm

The Friday Slot (9) – Damien Geradin

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This 9th edition of the Friday Slot features an interview with Damien Geradin (Covington & Burling, TILEC). I owe a lot to Damien. If Alfonso ever did me the honour to invite me on the Friday Slot, I would explain that Damien is the one who really got me into competition law. We met at the College of Europe, where I was his student. Came the end of the year, he offered me a research assistant position in Liege. I took it, and he then taught me how to write, introduced me to the more economic approach of EU competition law and taught me that all established truths – and in particular legal principles – deserve to be discussed. I will never be grateful enough for all the things he brought me. More generally, in the competition community, Damien is known for his many powerful papers on abuse of dominance law. He is also amongst the very few EU law scholars who managed to obtain a teaching position in a US university, and to reach position 40 in the ssrn ranking of top authors for law. We are immensely happy to publish his interview today.  

Oscar” of the best competition law book?  And of the best non-competition law book?

I have never really used any competition law book (as when I am looking for a piece of information, I am rather trying to find the relevant law review article), so it is a hard question to answer.  The Antitrust Paradox of Robert Bork was certainly very influential and a good read, but it was flatly wrong on some points.

Mémoires d’Hadrien by Marguerite Yourcenar is a fabulous historical novel, which I read when I was a teenager. Since then, I have read very many books, but none exceeded the level of perfection and erudition of that book. Albert Speer’s memoir Inside the Third Reich is also a book that needs to be read (as it explains how the unthinkable happened), although I regretted that Speer did not express stronger regrets for his actions.

Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

Although this is not a case-law development, I think that the Commission did a fine job with the guidelines on horizontal cooperation agreements. The Commission managed to find a good balance on some complex and sensitive issues.

As to the worst case-law development, the ECJ judgment in TeliaSonera is a terrible piece of work. It will be hard to explain to future generation of students why margin squeeze is conceptually different from refusal to supply, and why the condition of essentiality that must be met in refusal to supply cases doesn’t apply to margin squeeze cases. This leads to patently absurd results.

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

1. I would split investigative and decision-making functions in EU competition cases. No one would create enforcement agency combining such functions today. There is a large consensus among scholars and practitioners that such a reform is needed even if it is resisted by the Commission. How this should be done in practice is subject to discussion and various modalities could be envisaged. But the principle that no authority should combine investigative and decision-making functions is fundamental.

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Written by Nicolas Petit

27 April 2012 at 3:22 pm

Posted in The Friday Slot

The Friday Slot (8) – Johan Ysewyn

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For this eighth edition of the Friday Slot, Chillin’Competition has interviewed Johan Ysewyn (Covington). Our readers willing to improve their presentation skills should once attend Johan’s seminar on cartel law at the Brussels School of Competition (BSC). With his partner in crime Ewoud Sakkers, they have managed to craft a real attractive seminar which combines high-level competition law teaching with role-playing. Both instructive and hilarious. And each year, the students’ evaluation reach sky-high levels. All of this to just say that the powerful and humourous Johan denotes within the grey world of the legal community. We are immensely proud to have him on this slot. Enjoy!

PS: In a gesture of solidarity with our fellow Spanish professor who got sued for defamation on his blog, Chillin’Competition will be closed next week. This decision has nothing to do with the fact that Alfonso will be away in Croatia with ‘Ms Lamadrid’ nor with the fact that I will be skiing in France.

Oscar” of the best competition law book?  And of the best non-competition law book?

The Oscar for the best competition law research book still goes to Korah’s yellow book.    I kept my edition from my College of Europe days and although the last edition dates back to 2007, it still is a great – and to the point – introduction to the competition law field.   Judge Bork’s “The Antitrust Paradox“, has been mentioned already by a number of my co-Friday slotters and remains an essential read.   The idea that antitrust laws should be about protecting competition rather than competitors seems to be still a novel concept for a number of competition authorities.

A more fun competition-book is Christopher Mason’s “The Art of the Steal” which gives the background and history to the Christie’s/Sotheby’s cartel and is really a good “thriller”-type read.   Highly recommended.

On the non-competition side, I have started reading some of the French modern literature.  Jonathan Littell’s “Les Bienveillantes” is simply a must-read in dealing with the darkest period of the 20th century.  Am also a big fan of Amélie Nothomb, especially where she describes the cultural clash between East and West.   “Stupeur et tremblements” is an essential read for those of you who have Japanese clients.  A friend recommended me Michel Houellebecq – La Carte et le territoire – but haven’t got beyond the first 20 pages yet.

Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

Oscar of the best case-law development: All of the cartel judgments of the last year where the Commission is being criticised for misreading/misinterpreting the evidence.   Finally.

Oscar for the worst case-law development: Pfleiderer.  Commission now needs to legislate to avoid leniency statements being disclosed, something which strikes me as a no brainer.

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

  • Find a comity-rule for multi-jurisdictional merger filings.  What a waste of time and money.   Good for law firms but the benefit of having 20 countries or more looking at a merger – where some of them only have a tangential interest escapes me;
  • Reinforce internal checks and balances within DG Comp.  They have been slipping on that.   And yes, I know we’d all look to split the decisional and the investigatory layer but I am a realist;
  • More judges in the GC, resulting in speedier appeals.

Average working time/week?

I have realized that hours in the office and efficiency don’t necessarily match up.

Why do you work in competition law? How did you first get into it?

As many people from my generation, I started off doing a lot of general EU-type work as well as commercial work.   There was the Internal market push by Delors – 1992 remember – and there was lots of advisory work on distribution contracts and the like.   But things were changing.  The  Merger Regulation had just entered into force and national authorities were being set up all over Europe.   So there was simply more competition work to do.

And yes, I enjoy it too.   Saying that it combines law, economics and policy is so cliché – but it is true.

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Written by Nicolas Petit

30 March 2012 at 9:16 pm

Posted in The Friday Slot

The Friday Slot (7)- Maurits Dolmans

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This seventh edition of The Friday Slot features an interview with Maurits Dolmans (Cleary Gottlieb). Most of us are aware of his tremendous reputation as a leading antitrust lawyer, but his answers to our questionnaire will reveal facets of his personality and of his life that, until now, remained mostly unknown. It’s a privilege for us to publish Maurits’ bright and most interesting answers. Enjoy!

“Oscar” of the best competition law book?  And of the best non-competition law book?

I do not read competition law books;  I just use them as reference.  A truly memorable “legal” book is Natural Justice by Ken Binmore, with fascinating game theory showing how, for all our competitive spirit, justice and fairness are innate in the human existence – a comforting thought in a turbulent world.

My non-legal favourites are probably Robertson Davies’ Deptford trilogy (The Manticore) and Cornish trilogy (What’s Bred in the Bone).  I re-read these every once in a while – the sign of a great novel.  Recent great reads include The Elegance of the Hedgehog, Robert Merle’s Fortune de France, and Het Woud der Verwachting (a magnificent historical novel by Hella Haasse on the life of Charles d’Orleans).  From more innocent days, I loved reading The Education of Little Tree to our children (writer was a horrible man, but it’s a lovely little book).

“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?

Best non-case law are the Horizontal Guidelines. Undisputably the best judicial decision is KME v. Commission.  The detailed and intensive review required in merger cases after Tetra Laval  now also applies also to cartel cases.  It is already having effect:   In the hearing on the appeal for Masco in the bathroom fittings and fixtures case in February, the Commission explicitly agreed that the General Court should exercise a complete judicial review over the facts.

The worst is Pfleiderer v. Bundeskartellamt. Leniency statements should not be disclosed. The Court did not distinguish self-incriminating leniency applications from pre-existing documents. That is a mistake and could interfere with public policy to encourage revealing and closing down cartels.

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

  1.  The Commission should recognize privilege for in-house counsel who are full members of the Bar.  Even after AKZO, the Commission has the discretion to do so.  It is even more wrong for the Commission to reserve the right to seek access to legal advice from outside counsel who are members of a non-EU bar.  It is a fundamental right of every client to seek legal counsel in confidence from a lawyer of his/her choice.
  2. To avoid confirmation bias, the DG Comp team that investigates a case and writes an SO should not be the one to make and write the final decision.  The decision should be adopted (or recommended to the College for adoption) by a separate panel chaired by the Commissioner, which should independently review SO and written pleadings and attend oral hearings.  Right now, decisions are adopted by a College of Commissioners none of whom have read the pleadings or attended the oral hearing, based on internal notes written by the team than write the SO, not accessible to the defendant.  I have great respect for the integrity of EC officials, but this process is institutionally unsound.
  3. The “me-too” spirit of international merger control has led to a glut of unnecessary merger laws requiring parallel notifications.  This is a monumental waste of time and resources, combined with a risk (already materializing) that merger control is used by “new authorities” to give advantages to national industries.  Some kind of comity rules should be set out to allow the, say, three jurisdictions most affected to review a case, with others declining or focusing on local product markets.

Average working time/week?

Too long.  Fortunately I love what I do and have an understanding wife, our children have grown up, and the firm has a generous sabbatical and vacation policy.

Why do you work in competition law? How did you first get into it?

It’s intellectually satisfying and relevant.  I have always believed in the European ideal.  Integration of national economies should prevent re-emergence of the old enmities that we have not seen for 67 years, and hope never to see again.

Most interesting, intense or funny moment of your career?

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Written by Alfonso Lamadrid

23 March 2012 at 11:35 am

Posted in The Friday Slot

The Friday Slot (6) – Jacques Bourgeois

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Prof. Jacques Bourgeois is on this week’s Friday Slot. A few words about Jacques are in order. I first met him as a student at the College of Europe. He was presenting his seminar during the “beauty context” shopping week, when students select their options. I was impressed, so impressed that I did not chose the seminar, for fear of not being up to the challenge. Jacques seemed a somewhat demanding Professor for the continental student I was, navigating with increasing ease in competition and trade law matters, requesting active student participation, and professing in beautiful English.

Our paths crossed again 8 years after, when I started as the executive secretary of the GCLC. We worked together for several years. In my short career I have had the immense chance to meet very many professionals. Yet, I have rarely seen a lawyer with a such mastery of social skills and management capabilities. Jacques is the kind of person who can turn a tense meeting with irritated attendees into a relaxed, and possibly funny, event. This is maybe why everyone in the business likes him, and why we at Chillin’Competition like him so much. Thanks to him for having taken the time to answer our questions. 

Oscar of the best competition law book? Non-competition book?

In the competition law field, I praise the book of David Gerber: Law and Competition in Twentieth Century Europe. Protecting Prometheus (Oxford University Press, 2001)

Out of the antitrust world, but still related to the legal field, John Rawls’ A Theory of Justice (Belknap, 1971) is a must.

 “Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development? 

In my opinion, the CJEU made a great job in Confédération européenne des associations d’horlogers-réparateurs (CEAHR) v European Commission (CJEU, 15 December 2010, Case T-427/08).

On the contrary, I am very critical towards the Alrosa ruling (CJEU, European Commission v Alrosa, Case C‑441/07 P).

Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU competition system. What would you do?

The one reform that I would organize in priority: that fines be decided upon by a court of law.

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Written by Nicolas Petit

2 March 2012 at 7:55 pm

Posted in The Friday Slot