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On disclosure and conflicts of interests: three years later, we are in a better place

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A Better Place (@ABPMovie) | Twitter

With so much at stake in competition law disputes, one is hardly surprised by news about corporate funding and/or an academic failing to disclose potential conflicts of interests. These stories are bound to make the headlines every now and then. Two were featured last week (see here and here).

News about potential bad practice (and/or companies fighting by other means) are always concerning. This time around, however, I like to see the glass half full. I am reminded of the situation three years ago, when similar news broke in sensational fashion.

I wrote about disclosures and conflicts of interest at the time (see here) and I invited Cyril Ritter to do the same (see here).

My main concern then (other than the use of academics as fodder in a proxy war) was the absence of guidance: without clear rules on disclosure, any views could be potentially discredited as suspicious (the infamous ‘if you say that, it must be because someone is paying you’).

In that regard, enormous progress has been made. The ASCOLA declaration of ethics, an effort led by Ioannis Lianos, set the tone and defined the gold standard to be followed. Journals – including JECLAP – take the issue much more seriously than in the past (even referees are asked to disclose potential conflicts of interests these days).

A first consequence of the adoption of these guidelines – inspired by the long-standing rules of the American Economic Association – make it easier to identify bad practice.

We have now learned to become suspicious of disclosures that do not tell the whole story. When someone just mentions that they ‘have not received funding for THIS article’ or that they ‘are not involved in THIS matter’, it is typically the case that there is a potential conflict of interest that is being concealed.

A second consequence (and the most important one, in my view) is that clear and meaningful rules protect people that play by them. It is incredibly helpful to be able to clarify from the outset (in a paper or at a conference) that one has nothing to disclose.

Against this background, I am inclined to believe that last week’s news will be, on the whole, a positive development for the competition community. The need to disclose will be taken even more seriously, and I anticipate that key people will be more proactive from now on.

Taking the initiative and directly asking whether there are potential conflicts of interest to disclose will be seen, even more than at present, as the right thing to do (if only because it is fair to those who play by the rules).

The main challenge ahead: consensus and peer review as a safeguard against capture by special interests

The main challenge I see ahead is the risk of capture by special interests. Corporations advance ideas that conform to their agenda and worldview.

These ideas may seek to show that their practices are pro-competitive and/or that someone else’s are anticompetitive. They may also seek to persuade us that the sweeping changes that happen to be in the firm’s interest are also beneficial for society as a whole.

I am not concerned with the dissemination of these theories. It is natural for firms to advance their interests. And it is the case that some of these ideas survive the peer review process because they genuinely advance our understanding of some phenomena.

My fear is that these ideas drive policy before they are subject to proper scrutiny. Peer review and consensus are essential to prevent capture by special interests (something I also mentioned in my feedback on the New Competition Tool). They are the best allies of sound policy in the general interest. It is probably the case that, at this juncture, with so much at stake, peer review and consensus are needed more than ever.

Rushing to make decisions based on ideas that have not undergone proper expert scrutiny is the very opposite of progressive policy: it weakens competition authorities and favours corporate actors with disproportionate access to power and dissemination outlets.

It is true that peer review and the emergence of a consensus take time. Some people who genuinely want to advance the general interest feel that time is of the essence: they believe action is needed as soon as possible.

I understand the frustration some may feel. However, experience teaches us to be cautious: a policy that, on its surface, seems to be in the interest of society as a whole may only serve a small, well-organised pressure group. What is more, the opposite can also be true.

Rules on disclosure will help. Making sure that unscrutinised ideas are treated with the appropriate degree of scepticism, even more so. I am hopeful disclosure will strengthen the latter.

Written by Pablo Ibanez Colomo

29 July 2020 at 5:39 pm

Posted in Uncategorized

On Facebook’s application for the annulment of requests for information (T-451/20 and T-452/20)

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facebook-image-search-1

You may have seen in the news today (Mlex also anticipated it a couple of weeks ago) that Facebook has appealed two European Commission requests for information (RFIs), and that it has now obtained an interim suspension from the President of the General Court (see here).

Neither myself nor my firm have any business interest in this case. I have no detailed information, and therefore no views, on whether Facebook’s appeals are well-founded or not, but I am most interested in the legal questions it raises:

As long-time readers of this blog may remember, some years ago we devoted a number of blog posts to the issue of the legal limits on RFIs. That was partly because I was the lawyer in one of the cases in the cement saga (where the RFI was ultimately annulled by the CJEU and the Commission’s investigation was subsequently closed). Whereas other cases in that saga focused on proportionality and insufficient reasoning, our case revolved around the notion of “‘necessity”. Together with then AG Wahl’s Opinions in Heidelberg and other parallel cases, that case still stands as the main precedent regarding the necessity criterion in Art. 18 of Regulation 1/2003.

In a nutshell, and as I have told Global Competition Review today, the Commission enjoys wide investigative powers and it is certainly entitled to use them in full to confirm any reasonable suspicions of an infringement. The Courts will not get in the way of the Commission gathering sufficient evidence to show a competition infringement, but they might well intervene if the information requested lacks a connection with the presumed infringement, or if the Commission does not have concrete indicia constituting reasonable grounds for suspicion.

In these particular cases, the General Court might have to verify (i) whether the information requested might reasonably help the Commission establish an infringement; (ii) whether there were sufficient safeguards in place to mitigate any privacy concerns linked to the use of broad search terms (the ones regularly used in inspections should generally also be sufficient here).

Facebook must surely know that winning on a “non-necessity” argument will not enable it to shield relevant evidence, so its move could well be motivated by concerns unrelated to the competition investigation.

For more details on the interpretation of the notion of “necessity” in RFIs you can check out our previous posts, available here, here and here. A few years ago I tried to summarize those and explain the legal issues at play in this presentation at the Brussels School of Competition:

Lamadrid_ The Cement Judgments and their impact on future RFIs

Whereas further clarity on the law will be nice to have, the timing of Facebook’s application is somewhat inconvenient; one of my summer plans is to finalize reviewing the proofs of the chapter on RFIs I have co-written for the upcoming edition of the procedural bible, and we will now have to fit this in…

Written by Alfonso Lamadrid

28 July 2020 at 3:47 pm

Posted in Uncategorized

On Case C-165/19 P, Slovak Telekom: an upcoming development under the radar

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Under the Radar: How to Protect Against the Insider Threat

These days, attention in competition law circles seems to focus more on the policy dimension – new cases brought by competition authorities, new legislative initiatives – and less on developments before review courts. Keeping an eye on the latter makes sense, if only because major policy initiatives end up challenged.

Slovak Telekom is a key pending case for the future of Article 102 TFEU and the boundaries of the the various legal tests. More precisely, the Court will rule on the scope of the Bronner doctrine (and more precisely of the indispensability condition).

It is one of these cases where the outcome is probably far less relevant than the rationale underpinning the outcome. The former comes across as relatively straightforward, in my view; the latter is far more interesting.

Slovak Telekom: on ‘margin squeeze’ and… ‘margin squeeze’ by other means

Slovak Telekom is a chapter in the long saga of Commission decisions against incumbents in the telecommunications sector.

It is interesting because it involves non-price conduct. The trinity of Deutsche Telekom, Wanadoo and Telefonica revolved around pricing strategies, which were examined under the ‘margin squeeze’ and the predatory pricing labels.

Slovak Telekom, on the other hand, involves price-based strategies (‘margin squeeze’) and non-price-based ones (broadly speaking, unfair terms, such as withholding the necessary information to compete or reducing the scope of its obligation to provide unbundled access to the local loop).

The object and/or effect of both sets of strategies was in any even the same, according to the decision: hinder new entrants’ ability to compete in retail telecommunications markets.

Key point of law: is indispensability an element of the legal test?

The case was decided after TeliaSonera. And TeliaSonera had already clarified that, for better or worse, a ‘margin squeeze’ can be abusive even when the input involved is not ‘indispensable’ within the meaning of Bronner/IMS Health.

The point of law raised in the applications for annulment is interesting: does the TeliaSonera doctrine also apply to non-price-based conduct in a similar economic and legal context (recently liberalised industry subject to sector-specific regulation)?

Following TeliaSonera, it seems to me that indispensability is unlikely to be deemed a pre-requisite for intervention in a case like Slovak Telekom. I fail to see how one can justify applying different legal tests to practices that have the same object and/or effect.

If indispensability is not required for the ‘margin squeeze’ aspect of the overall strategy, I cannot think of a good reason why it would for its non-price aspects.

Explaining the most probable outcome of the case

While it seems relatively easy to anticipate the most probable outcome of the case, teasing out the logic underlying the outcome is far more interesting.

The General Court explored two possible justifications. One the one hand, it argued that, since there is already a regulatory obligation to give access, indispensability would no longer be required. On the other hand, it took the view that the scope of TeliaSonera could be read as applying beyond ‘margin squeeze’ conduct.

I can think of a way to reconcile these two justifications and in which they both make sense. As I have explained before, the key probably lies in Van den Bergh Foods. In the relevant economic and legal context, the Slovak Telekom decision did not amount to mandating the firm to transfer an asset or enter into agreements with persons with whom it has not chosen to contract.

In the circumstances of the case, the infringement could be addressed with an old-fashioned one-off negative obligation (that is, an obligation to cease and desist the conduct).

Because there is a regulatory apparatus in place, there was no need for the Commission to take over the role of a sector-specific agency. For the same reason, the issues raised in cases like Bronner (the imposition of access obligations on regulated terms and conditions) do not arise.

Which takes me to TeliaSonera. In a passage (occasionally criticised), the Court explained that, if indispensability were required in the context of a ‘margin squeeze’, then it would be required in every abuse case.

If you think about it, the passage makes sense. A ‘margin squeeze’, as a practice, typically raises issues that are not fundamentally different from those at stake in predatory pricing cases (as Wanadoo shows, the two labels are sometimes even interchangeable).

If one has never thought of requiring indispensability in a predatory pricing case, there should be no reason why it should be required in the context of a ‘margin squeeze’ (or any other case that would not demand the administration of proactive, regulatory-like remedies à la Bronner).

Summing up: the regulatory context is key, as suggested by the General Court. This is so insofar as, in such a context, a cease-and-desist obligation is enough to bring the infringement to an end. In the same vein: the key in TeliaSonera is not so much the pricing or non-pricing nature of the practice, but the nature of intervention.

Written by Pablo Ibanez Colomo

24 July 2020 at 1:28 pm

Posted in Uncategorized

Is it an abuse for Apple to embed a camera in its iPhones? What is special and different about digital cases

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While drafting my latest paper, I asked myself how I could convey what is special and different about cases in digital markets. I do not believe these are ordinary investigations involving a straightforward application of well-known principles. Illustrating the point, however, is not easy.

Once again, I was drawn to the example that I often use with my students. It is even more pertinent following the Android decision and the investigations involving Apple’s practices (see here and here).

This example revolves around a simple question: is it abusive for Apple to embed a camera in its smartphones?

Some of you may have thought ‘certainly not’ and/or that ‘it would make no sense’ to say so. However, if one follows the logic of cases like Microsoft I or Android the inevitable conclusion is that, indeed, embedding a camera in a smartphone is abusive under Article 102 TFEU.

Smartphones, cameras and tying under Article 102 TFEU

I will make my point following the Commission’s interpretation of the conditions that are deemed canonical to show that tying amounts to an abuse.

Dominance

The Android decision and the ongoing investigations involving Apple seem to be based on the idea that the two ecosystems do not compete with one another (I discussed these points here and here). Accordingly, one could conclude, in light of this prevailing interpretation, that Apple is dominant.

Two products

For tying to exist, it is necessary to show that there are at least two separate products – a tying product and a tied product. Can one say that a smartphone and a camera are separate products? Yes, at least following Microsoft I. The interpretation of the ‘two product condition’ given by the Commission survived scrutiny by the General Court.

According to Microsoft I, the question is whether the tied product (in this case, the cameras) is produced independently of the tying product.

Typing ‘digital camera’ on, say, Google will show that the two product condition is indeed fulfilled under this interpretation (take a look at the pic below). There are certainly manufacturers specialised in the production of stand-alone digital cameras sold independently of smartphones.

Coercion

For tying to amount to an abuse, there must be an element of coercion. And there is probably no more effective coercion than physically embedding one product in another one.

Anticompetitive effects

Whether or not anticompetitive effects are an element of the legal test is a matter for debate. If one assumes that they are, the pic below suggests that smartphones have had a substantial impact on the sales of stand-alone cameras.

One could also try and make an argument about the potential dynamic effects of the exclusion of competing camera producers. Such arguments were already made in Microsoft I (harm on follow-on innovation) and have also been advanced in more recent investigations.

Objective justification

It is not difficult to think of the pro-competitive benefits resulting from integrating cameras with smartphones. These arguments, however, have so far not fared very well in proceedings before the Commission.

It is sufficient to take a look at cases like Microsoft I (Windows Media Player), Google Shopping and Android.

It is true that combining complements (for instance, an operating system and an application, or organic and vertical search results) typically makes end-users’ life easier and/or better. However, the Commission has also noted that they come with restrictions: namely, they prevent mixing and matching.

The same arguments could be make in relation to smartphones and cameras. End-users would not have the ability to use the camera of their choice, as Apple’s own choice (perhaps not even the best camera around, or not the one best suited to their needs) is forced upon them.

Implications

As you can see, the mechanical application of traditional tying doctrines, as interpreted by the Commission, inevitably leads to the conclusion that the embedding a camera in a smartphone is abusive.

If you still think that it makes no sense, I agree.

Some of you may think that the above is a purely theoretical discussion, as no competition authority would ever bring such a case.

Is it enough to say that competition authorities would exercise their prosecutorial discretion wisely? I do not believe so. As I have mentioned many times, competition policy is implemented through law, not discretion.

In a decentralised system like the EU one, moreover, one cannot exclude that a national court will be asked to rule in a similar dispute. And national courts cannot hide behind their policy priorities: they have to decide on cases brought before them.

If a national court were confronted with a case like this one, it would inevitably realise the main implication of the above: the legal test conceived for traditional instances of tying is not ideally suited for product design cases.

What is special and different about digital cases

If we agree that the legal test applying to traditional instances of tying is not appropriate, the next question is why. What is the difference between contractually tying the sales of one soft drink to the acquisition of another soft drink, on the one hand; and embedding cameras in smartphones, on the other?

The key is that intervention in the latter case is far more ambitious. A traditional instance of tying involving soft drinks relates to how products are sold. Questioning the integration of complements questions how products are made. In other words, the latter interferes with the heart of a firm’s business model and/or the design of products.

In order to understand the difference between the two cases (and what they involve), it is typically useful to think of the remedy. How can the infringement in a case concerning the contractual tying of soft drinks be brought to an end? A one-off negative obligation would be enough.

What would the remedy be if integrating cameras into smartphones were deemed abusive?

Perhaps, a Microsoft I-style remedy: asking Apple to produce a version of its smartphone without a camera. One could also imagine a Google Shopping-style remedy: several versions of the smartphone, each with a different camera. An auction could be organised to decide which cameras go into the various devices.

Irrespective of the particularities: the remedy would be infinitely more convoluted, and could perhaps fail (as in Microsoft I). This crucial difference is not (and cannot be treated as) an afterthought that is irrelevant to the determination of the appropriate legal test.

In all digital cases, including pending ones, the Commission is venturing more often than in the past with how products are made. It is questioning monetisation strategies (the ongoing investigations into Amazon are a good example) and the appropriate degree of modularity within an ecosystem (investigations appear to question whether integrated firms should keep some activities for themselves, which is what the Apple Pay case seems to be about).

It makes sense to look closely into these matters. But I fail to see how one can pretend that cases in which intervention would interfere with the heart of a business model and/or the design of a product are just like old-fashioned contractual tying cases and do not raise far more complex issues.

For the same reasons, one should not avoid the hard questions about the appropriate legal test to deal with these cases and about the institutional implications of making it easier to interfere more often with how products are made. This is the key message I tried to convey in my paper.

I look forward to your comments. I have repeatedly clarified, and this time is not an exception, that I have nothing to disclose.

Written by Pablo Ibanez Colomo

21 July 2020 at 7:26 pm

Posted in Uncategorized

NEW PAPER | Self-Preferencing: Yet Another Epithet in Need of Limiting Principles

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I have just uploaded on ssrn a paper on Self-Preferencing (see here). Those with a good memory may remember that the paper started its life as a blog post. Given the topicality of the issue and its growing importance, I felt it made sense to expand some of the arguments and revisit other arguments explored in other recent papers of mine.

I advance three main ideas that I believe were worth emphasising in the current environment.

The first is that self-preferencing is, in itself, a manifestation of competition on the merits. Not only is there nothing inherently suspicious in a firm favouring its affiliate, but often it is inextricably linked to the pro-competitive benefits expected from horizontal or vertical integration.

The second idea is that self-preferencing is not a sound legal category. Legal categories are necessary. However, not all of them are useful or meaningful. The fundamental problem with self-preferencing is that it is a catch-all concept that brings together behaviours that are fundamentally different.

In addition, it overlaps totally or partially with well-established categories. In this sense, it is not clear what its added value may be.

Suffice it to think about it for a second. Tying and bundling are forms of self-preferencing (in essence, tying amounts to giving a competitive advantage to an affiliate). A refusal to deal is also a variation on the same theme: the integrated firm refuses to deal with rivals because it intends to favour an affiliate.

These practices are also very different if one takes into account the nature of the intervention to bring the infringement to an end. We know from experience that intervention in some cases requires a court or an authority to change the design of a product and/or change a firm’s business model. Other cases can be addressed by means of a one-off negative obligation.

As you can see, it is difficult to see how the competition law system will improve with the introduction of a legal category that overlaps with existing ones and that obscures the differences between them.

With takes me to my third point: if self-preferencing is going to be embraced, the system would benefit if the implications of doing so were carefully pondered.

I have discussed Van den Bergh Foods in previous papers (see in particular here). Its implications are clear: where intervention in a case would involve forcing a company to transfer an asset or to enter into agreements with third parties, indispensability is an element of the legal test.

This case law makes sense. Indispensability is a sensible filter to limit the instances in which the system is required to the tricky and error-prone tasks of redesigning products and/or changing business models. The institutional implications of abandoning this filter are substantial, and they would need to be addressed.

Finally, there is much talk these days about making self-preferencing prima facie unlawful. This is another issue that deserves careful thought. From a positive perspective (in particular following Generics and Budapest Bank), self-preferencing is not the sort of practice that can be treated as a by object infringement.

From a normative perspective, a robust effects analysis, at the very least, seems necessary. Turning self-preferencing into a by object (or quasi-by object) does not come across as optimal.

I very much look forward to your comments. If you were wondering, I am happy to clarify, in accordance with the ASCOLA declaration of ethics, that I have nothing to disclose.

Written by Pablo Ibanez Colomo

17 July 2020 at 12:23 pm

Posted in Uncategorized

The Apple Judgment in Context (Cases T-778/16 and T-892/16)

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Apple post

The General Court annulled earlier today the Commission’s Apple decision (the full Judgment is available here). This has come as a surprise for many, perhaps not so much to those of us who attended the oral hearing (see here). It may also not have been much of a surprise for readers of this blog following the latest trends in EU judicial review (see below).

This Judgment cannot be examined in isolation. The reasons for, and the implications of, this annulment can be better understood by examining the case within a wider context:

The context of other Judgments on tax rulings. The identity of the company affected and the amounts at stake made this the most visible of the recent cases in which the Commission has challenged tax rulings under State aid rules. That increases the PR repercussions of the defeat. From a strictly legal standpoint, however, the Apple case is not necessarily more relevant than the Fiat and Starbucks Judgments rendered in September 2019 (we commented on those here).

The Apple ruling, like those in Fiat and Starbucks, confirms that it is possible for the Commission to target tax rulings under State aid rules. All three cases bypassed the thorny issue of selectivity and focused the debate on the existence of an advantage. All three cases recognize that the Commission is entitled to rely on the arm’s length principle and on the OECD’s work to determine the existence of an advantage by reference to ordinary taxation. The three Judgments send a consistent message that the Commission’s policy is not wrong as a matter of principle, but that the devil lies in the details, and that it is for the Commission to assess those details.

The context of the wider case law on fiscal State aid. My more detailed technical views on that are outlined here.

The context of EU judicial review. The Apple Judgment will attract more attention than other annulments, but in reality, it is not in any way groundbreaking from a legal standpoint. The reasons, and the reasoning, leading to today’s annulment are exactly the same as the one that has led to the recent annulment of other decisions, including in Frucona Kosice, FC Barcelona, Real Madrid, Naviera Armas, Valencia and Elche cases, among others. In recent years the Courts have consistently insisted on the Commission’s obligation to actively and impartially gather and assess all the relevant evidence in relation to issues where the burden of proof is incumbent upon it. It was all there. Apple had probably won before entering the courtroom.

You might think this is easy to say in retrospect, but we already anticipated all of this here and here. At the time, we said that “it won’t be difficult for the Commission to continue to win cases if it incorporates this logic into its day-to-day. If that does not happen, we are likely to witness a series of annulments based on this logic (…) My bet is that I will be making a few future cross references back to this prediction”. Here’s one more cross reference, probably not the last one.

A paradoxical result? Our previous post on Fiat and Starbucks noted that “paradoxically, the Commission [might have] to do a greater job when Member States do worse. In other words, the Commission cannot simply assume that because the Member State acted in a seemingly arbitrary manner the outcome was wrong.  As Vice President van der Woude noted at the Apple hearing last week, one cannot fully exclude that there may have been a happy coincidence. The message, again, is that nothing is evident and that the Commission cannot take things for granted”.

In the case of the Apple ruling, in sum, the Commission took the view that the existence of a seemingly arbitrary process created a presumption of a selective advantage (i.e. a derogation from normal market conditions), which would place the evidentiary burden on Ireland/Apple to show that the advantage did not exist. Today’s Judgment does not hide the Court’s dislike of that particular negotiation process, but considers that this does not enable the Commission to simply presume the existence of an advantage. The Court’s press release itself states that “the General Court regrets the incomplete and occasionally inconsistent nature of the contested tax rulings”, only to then clarify that “the defects identified by the Commission are not, in themselves, sufficient to prove the existence of an advantage”.

3 Lessons from the Judgment.

1) The Apple Judgment again shows that the EU Courts are ready to give the Commission room for maneuver, provided that it does a thorough job in its assessment of all the relevant circumstances when it bears the burden of proof;

2) Very often, it’s all about the burden of proof. Infringements are established, not presumed. And be mindful that this is a case involving an administrative infringement by Ireland, not Apple; these principles apply even with greater strength in relation to quasi-criminal infringements by undertakings;

3) The EU system of administrative enforcement combined with independent judicial review works, regardless of the identity and nationality of the companies involved and of the economic or political interests at play.

What now? There is nothing humiliating in losing cases; that is a natural part of the work of any authority. The Judgment is more of a problem for the Commission’s PR policy than it is for the Commission’s wider strategy regarding tax rulings.  There is no legal obstacle for Commission to challenge tax rulings under State aid rules; it only needs to do its work thoroughly and with no shortcuts, no matter how tempting or seemingly justified. The Commission may even win other pending cases on this very same area. My bet is also that the chances of success of a Commission appeal would may not be high (an unlikely re-run of the investigation would arguably offer higher chances of success, but resulting in less eye-catching figures).

Like what has (and will) happen in antitrust cases, this defeat may however be used to push for regulation as an alternative. Like in the case of antitrust, this is even if there is arguably no real blind spot under the Commission’s enforcement powers. Unlike in the case of antitrust, regulation in the tax domain might be more desirable.

[Disclosure: I have nothing to disclose. I represented companies in some of the precedents quoted in the Judgment, and I currently represent a large number of companies in dozens of fiscal State aid cases pending before the EU Courts. All of those cases are unrelated to the issues raised in the Apple case]

Written by Alfonso Lamadrid

15 July 2020 at 8:35 pm

Posted in Uncategorized

My feedback on the Ex Ante Regulatory Instrument for online platforms

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Short TED Talk Video: “The secret to giving great feedback ...

[I also provided feedback on Monday on the Ex Ante Regulatory Instrument for online platforms (see here). The main point I make, as you will see below, is that, if this regulation is adopted, it should follow the model of the EU Regulatory Framework for electronic communications. It would be paradoxical if the regime applying to online platforms would be more rigid, less adaptable and less able to cope with economic and technological developments than the one conceived for copper wires back in 2002]

As an independent academic, I welcome the opportunity to provide feedback on the Ex Ante Regulatory Instrument (the ‘Instrument). In accordance with the ASCOLA declaration of ethics, I am happy to clarify that I have nothing to disclose.

There is a range of options considered in the Inception Impact Assessment (‘IIA’). Of these, I will focus on policy option 3, which is the adoption of an ex ante regulatory framework applying to online platforms.

It would be particularly important to draw the lessons from the EU Regulatory Framework for electronic communications (on which I teach and conduct research). The Commission was aware at the time (1999-2002) that telecommunications activities were subject to rapid change and that the regulatory regime had to be flexible enough to adapt to the economic and technological evolution of the industry. There would every reason to craft the Instrument in accordance with the same principles. Not only is change rapid and unpredictable in digital markets; the issues and concerns are much more diverse than in telecommunications.

Accordingly, option 3a (a ‘blacklist approach’) comes across as one that is not suited to digital markets. Any perceived benefits of the approach would be clearly outweighed by the known drawbacks.

The experience of the EU Regulatory Framework shows that it is virtually impossible to anticipate the needs of regulation in evolving industries. Accordingly, capturing, at the time of drafting the instrument, all necessary forms of intervention is unlikely. A more flexible menu of remedies, that allows the regulatory authority to tailor intervention to the demands of each market and to innovate where necessary (as some authorities did with functional separation in the telecommunications sector) is more appropriate.

One should also take into account that unwarranted intervention has major costs for society and as such goes against the public interest. The sort of obligations that are outlined in the IIA (such as a blanket prohibition on self-preferencing) are not neutral on firms’ incentives and can be expected to have an impact on stakeholders’ decisions. Accordingly, requiring such an obligation where negative effects are implausible or unlikely inflicts a net cost on society.

Finally, this regulatory approach makes legislative change more difficult. Once enshrined in an instrument, remedies imposed may prove difficult to amend, whether this is to expand the scope of intervention or to reduce it. A principles-based regime, which leaves the matter to a case-by-case assessment is more appropriate.

Option 3b (case-by-case intervention) is closer to the flexible model. Such a regime would follow the approach already taken in the EU Regulatory Framework for electronic communications:

First, it would be expressly biased against intervention. Remedial action would only be warranted where deemed justified to achieve the objectives of the regime. Similarly, it should not go beyond what is necessary. Particularly far-reaching remedies altering a business model or the structure of an industry would need to meet distinctly strict criteria.

Second, the regime, as already explained, should be flexible and adaptable.

Third, it should be neutral: the regime should not favour some business models over others, in the same way the telecommunications framework is technologically neutral.

Fourth, it should devise a legal test analogous to the three-criteria test in telecommunications. It would define, on a case-by-case basis whether regulatory intervention on a market adjacent to a platform is warranted to preserve competition and innovation. The question that should be asked is whether effective competition on a given market is likely to be preserved in the absence of regulatory obligations imposed at the level of the platform. Similarly, remedies should be rolled back when no longer needed.

Written by Pablo Ibanez Colomo

1 July 2020 at 11:04 am

Posted in Uncategorized

My feedback on the New Competition Tool

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Short TED Talk Video: “The secret to giving great feedback ...

[You will find below the feedback I gave to the Commission on the New Competition Tool – you can do so here until the end of today. I would emphasise two aspects about the feedback. First, the importance of the expert consensus to protect the public interes. Second, that it should not be enough to identify competition law problems (perfect markets do not exist, and many potentially problematic features also yield pro-competitive benefits). Under the NCT, the Commission should also show how intervention is likely to improve the functioning of markets and that there is no less restrictive alternative. I look forward to your thoughts].

As an independent academic, I welcome the opportunity to provide feedback on the New Competition Tool (‘NCT’). In accordance with the ASCOLA declaration of ethics, I am happy to clarify that I have nothing to disclose.

Scope of application

If a legislative effort of this magnitude is undertaken, it seems desirable that its scope is as broad as possible. As the experience of other jurisdictions shows, the digital sector is not the only where structural risks and/or obstacles to competition might arise. In the same vein, there would be little reason to confine intervention to a dominance-based test. Option 3, as a sector-neutral, cross-industry tool, seems appropriate.

Goals and relationship with other instruments

The goals of the NCT would need to be spelled out with clarity. The initiative would be easier to justify if it were confined to targeting actual gaps that Articles 101 and 102 TFEU would not be in a position to address. Conversely, the NCT cannot be a means to circumvent substantive standards that apply in the context of these two provisions (see below). The Inception Impact Assessment (‘IIA’) is not wholly unambiguous in this regard.

Expert consensus and experience

It would be essential to ensure that intervention is driven by experience and the expert consensus. Remedial action that is not grounded on a robust body of peer-reviewed literature would not be guaranteed to serve the public interest, might be vulnerable to instrumentalisation and would not allow the targets of intervention to exercise their rights of defence in a meaningful way. In particular, the criteria to establish the likelihood of a market tipping should be as robust (and as grounded on experience and the consensus of experts) as the criteria to establish a collective dominant position within the meaning of Airtours.

The substantive test

The IIA is silent about the substantive test. It should be clear and predictable and ideally accompanied by a set of guidelines. The Commission would have the burden of (i) identifying the competition problems to the requisite legal standard and (ii) showing how intervention is likely to improve the conditions of competition. Requiring the Commission to show (i) but not (ii) would not guarantee that intervention advances the public interest, as the same features that are deemed problematic in some markets also have the potential to yield pro-competitive outcomes. If the latter (ii) is ignored and an adequate balancing is not undertaken, intervention may yield losses for competition in the short and/or long run. Similarly, remedies cannot be treated as an afterthought left to the discretion of the Commission once concerns are identified. The proposed intervention is central to the analysis and the nature of the assessment required.

Standards of intervention under step (i)

The standards of intervention cannot be lower than those enshrined in the case law under Articles 101 and 102 TFEU. In particular, it would not be sufficient to show that there is a ‘risk’ of anticompetitive outcomes or that such outcomes are plausible. Such a threshold of intervention would in effect justify intervention in virtually any instance. In line with the applicable case law (and given that they are potentially pro-competitive or at least ambivalent), it would be necessary to show that anticompetitive outcomes are more likely than not to result from the features considered.

Standards of intervention under step (ii)

The Commission would need to show that remedial action is, on balance, pro-competitive (in the sense that the gains outweigh the losses) and that there is no less restrictive alternative. This exercise is important considering that the NCT could in theory support a wide array of remedies, ranging from information obligations to structural divestitures and interoperability obligations altering fundamentally the functioning of markets. Thus, the more intrusive the remedy, the higher the demands placed on the Commission.

Written by Pablo Ibanez Colomo

30 June 2020 at 10:36 am

Posted in Uncategorized

The Proposed New Competition Tool: A Follow-Up

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follow up

I recently published these 10 questions on the proposed new competition tool (“NCT”). That post spurred some debate, and very mixed views, here and elsewhere. The comments we received were thoughtful, and we thought they merited a follow-up.

[Disclaimer: As a practicing lawyer, I work for many companies that could be potentially affected (for better or for worse) by an eventual NCT. These include a considerable number of companies active in the sectors where the CMA has conducted market investigations, including retail banking, energy, airports and cement. I also work for companies active in digital, telecom, sports, financial services, retail, food, payments and many others where network effects are at play. The identity of many of them can be consulted in the curia website here]

Legal basis. This was one of the main points in my post, but it has only triggered reactions in private. In the competition field (and in national competition regimes) we are not used to these debates, but they are the one crucial legal issue when it comes to EU legislative initiatives. There seems to be a consensus that Art. 103 TFEU cannot be a legal basis for conduct falling outside Arts. 101 and 102 TFEU. This is apparently why the Commission contemplates relying also on an internal market legal basis. This is what was done re the Damages Directive, and it made perfect sense there (the idea was to harmonize competition law across the EU to ensure the uniformity and effectiveness of the rules). This same combined legal basis could arguably be sufficient  if the proposal were justified only as an “internal market tool”, but I’m not sure it does the trick for a “competition” tool that goes beyond Arts. 101 and 102 (where is the centre of gravity?). In my view, if we really want to enlarge the toolkit to cover “monopolization”, that would arguably need an amendment to the Treaty. Admittedly, the Commission could follow the indications of Protocol 27 to the Treaty and resort to Art. 352 TFEU, as it did at the time of adoption of the Merger Regulation. 

The object or effect of bypassing Court standards. My previous post expressed a concern that the NCT could have the object or effect of bypassing Court standards. To be sure, I am not saying the Commission is proposing the NCT to avoid established legal standards and its burden of proof (even if this would arguably be in line with the suggestions in the Special Advisers Report). My point is rather that, regardless of intentions, to the extent there might be an overlap between the scope of the NCT and that or Articles 101 and 102, then that will inevitably lead to bypassing those standards. That is my chief concern and, again, it has nothing to do with the Commission’s intentions, which I am sure are primarily concerned with the protection and, on this occasion, creation of competition. As the Commission often emphasizes, in competition law it is not intentions that matter.

Commissioner Vestager assured last week that the NCT “would let us investigate markets, in the same rigorous way that we already look into individual cases – with the same exacting standards of proof, the right for the companies involved to defend themselves, and the need for the decisions that we take to stand up in court”. Those are important and welcome words. I guess the question then is: what is it that would need to be proved?

Need of the tool to prevent market tipping. It has been argued that we need the NCT to anticipate market tipping. We are, however, assured that under an eventual NCT this assessment would of course be thoroughly analyzed and evidence-based. In our view, the case law has developed flexible standards and leaves ample room for prospective examinations (“capable of”, “likely to”, “potential effects”). To be fair, I have not seen examples of agencies having rightly predicted that tipping would occur (and remember prominent economists saying this is impossible), but the Commission successfully predicted where tipping would not occur despite powerful network effects (Microsoft/Skype re video calls on PCs).

Restrictive case law? A reader noted that if would be a good thing for the Commission to bypass “restrictive Court precedent”. Our view is that the EU case law is not in any way restrictive. As we noted in the previous post, for decades commentators have consistently criticized EU case law as too hostile to dominant firms (e.g. here). The Commission’s track record in unilateral conduct cases before the Courts is, if anything, impressive. It might arguably lose future cases, but that’s the name of the game; it would be strange to put on the bandage before the wound.

Think of the German Facebook case last week: when Facebook won, people argued this showed the shortcomings of competition law and the need for regulation. Now that Facebook has lost, the message is that of course the case was sound and solidly builds on existing standards. Different views on this are legitimate, but I’m not sure one can hold both views at the same time (heads, I win; tails, you lose).

Others have it too; the Commission’s special responsibility. You may be familiar with the argument that when one has a “special responsibility”, it does not really matter that others may do the same; perhaps you can’t (I use this with my eldest son too…). The recurrent argument to appease concerns about a potential NCT is that others already have it. And indeed, Romania, Iceland, Greece, South Africa, Mexico and the UK do have tools similar to those being considered by the Commission. There is certainly nothing wrong with the Commission following in those footsteps, but there are institutional differences that arguably matter, even if only as a matter of optics. The Commission’s political nature might be relevant to this discussion.

There is also the risk that this may encourage other countries without the Commission’s checks and balances to incorporate a similar tool. There are countries where powerful stakeholders might be able to secure an antitrust exemption in their favour and to guide intervention against business that they dislike. The risk of this happening could become more serious absent clear red lines and the requirement to find an infringement. By the way, our posts on Siemens/Alstom (here and here) are also relevant to this discussion (this is about principles, not manichean pro vs anti enforcement labels).

External pressures. Every year the Commission gets hundreds of formal and informal complaints alleging infringements. One can safely assume that the Commission will be subject to pressures to act against non-infringements, based on the mere observation that a given market does not perform appropriately. Can you imagine the public and private pressures that would be exerted on the Commission to make use of this tool in particular cases to advance private interests under the guise of progressiveness? By the way, this type of pressure on theories of harm and on remedies has contributed significantly to the length of competition investigations; could the same happen here?

On confidence (discretionalists vs legalists). We do not doubt the possible good intentions underlying the proposal. In our view, however, it seems to be premised on a great degree of confidence that one can, for example, (i) anticipate what markets can be expected to tip; (ii) determine the reasons for that tipping and whether it is, on balance, problematic; (iii) devise some sort of public intervention that will prevent/correct tipping; (iv) do this in a proportionate way that does not compromise welfare enhancing elements or incentives. I get that people may see shortcomings in legal rules that I don’t, but is this confidence in our economic knowledge and ability justified in the light of the available evidence? Legal rules are also safeguards against overconfidence.

Competition law, in sum, has never been a tool for the optimization/fine-tuning of market outcomes in light of more or less idealized benchmarks (one would need a lot of confidence to do that). That is why, as explained in our earlier post, a NCT could have an impact on the nature of the discipline. Whether we may want that or not is a different story, but we understand the reflection is necessary.

Written by Alfonso Lamadrid

29 June 2020 at 11:21 am

Posted in Uncategorized

AG Pitruzzella in Case C-132/19 P, Canal+: on the nature of commitment decisions

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Groupe Canal+ — Wikipédia

There is so much going in the discipline that we often lose sight of the pending cases before the EU courts. For over a month I have been meaning to say a word about AG Pitruzzella’s remarkable Opinion in Canal+.

The case would be of interest if only because it is about the status of commitment decisions in EU competition law. These decisions have been a major instrument in policy-making. However, they rarely ever reach the Court.

What this case shows is that, over 15 years since Regulation 1/2003 entered into force, and almost exactly 10 years since the Court ruling in Alrosa, there are some misunderstandings about the nature of the instrument.

AG Pitruzzela’s Opinion adds clarity about the status of commitment decisions in the EU legal order and introduces a refinement which, in my view, addresses the one issue that is common to Alrosa and Canal+: the impact of these decisions on third parties.

Pay-TV, Generics and ‘insurmountable barriers to entry’: the case that never was

Canal+ is a spin-off of the Pay-TV investigations against Sky UK and the Hollywood major studios. The single most interesting aspect of the case had to do with the clauses prohibiting Sky from making available, via the Internet, licensed content to customers located outside the UK.

The key point of law was whether such clauses could be deemed to restrict competition by object under Article 101(1) TFEU.

After Generics, we have the vocabulary to ask the legal question properly: is the copyright regime an ‘insurmountable barrier’ preventing licensees from (lawfully) offering content outside the area covered by the agreement? If it is, there would be no restriction (by object or effect); if it is not, the said agreement would be a blatant infringement.

Alas, the case never took off. The firms involved in the Pay-TV case offered commitments to the Commission, which brought the investigation to an end.

The challenge by Canal+

Canal+ challenged the commitment decision involving Paramount before the General Court. The most interesting aspect of this action for annulment is that the firm appeared to question the interpretation of Article 101(1) TFEU given by the Commission.

Article 9 of Regulation 1/2003, as interpreted in Alrosa, suggests this is not a straightforward legal route: a commitment decision is a vehicle through which the Commission exercises its discretion to prioritise cases; not one through which competition law provisions are interpreted.

The nature of commitment decisions has two consequences: judicial review is limited and confined to manifest errors of assessment (as it should be when policy choices by an administrative authority are at stake).

Second, a commitment decision is not a statement of the law and does not rule on whether Articles 101 and/or 102 TFEU have been infringed. The Commission must simply identify its concerns following a preliminary assessment.

Against this background, it is unsurprising that the General Court dismissed Canal+’s action. At the same time, the case was a valuable reminder that the nature of commitment decisions, even after Alrosa, may not always be well understood.

AG Pitruzzella’s Opinion

Commitment decisions and Article 101(3) TFEU

A central question addressed by AG Pitruzzella is whether the preliminary assessment must include an overview of the conditions set out in Article 101(3) TFEU.

In other words: must the concerns be limited to a finding of a prima facie infringement (Article 101(1) TFEU), or must the Commission also evaluate in its preliminary assessment whether a potential restriction might in fact be justified under Article 101(3) TFEU?

The Advocate General repeatedly emphasises the nature of commitment decisions and the fact that, as a result, at no point is the existence of an infringement addressed as such (see in particular para 66).[1] For the same reason, the theory underpinning action by the Commission need not be as solid as it would in the context of an infringement decision (para 67).

The Advocate General concluded, in light of the above, that the analysis of the economic and legal context by the Commission was in line with what is expected from it in a commitment decision (where, as pointed out in the Opinion, the authority must simply find a ‘potential infringement’).

Concerning the question of whether the preliminary assessment must comprise an evaluation of the conditions set out in Article 101(3) TFEU, on the other hand, the AG Pitruzzella departs from the Commission’s position (which was, in turn, accepted by the General Court).

Thus, the preliminary assessment must consider the two stages of Article 101 TFEU, and not simply the first paragraph. While I was persuaded by the Commission’s reasoning, the outcome suggested in the Opinion comes across as reasonable. Arguably, raising concerns about a practice implicitly assumes that the conditions set out in Article 101(3) TFEU are not fulfilled.

The protection of third parties’ interests

The Opinion addresses, next, an issue that has become apparent in proceedings before the Court. A firm, whether it is De Beers or Paramount, can accept commitments with major consequences for third parties, and this through the use of an instrument that seeks to achieve procedural economy and is subject to limited judicial review.

In this regard, the Advocate General concludes that the Commission breached the principle of proportionality by not duly taking into consideration third parties’ rights affected by the decision (and, by the same token, that the General Court had erred in law).

There are two aspects of the reasoning that deserve to be highlighted. On the one hand, AG Pitruzzella notes that the Commission’s interpretation of Alrosa (and more precisely of the principle of proportionality) was particularly restrictive (para 120).

On the other, he emphasises the implications that commitments could have on firms affected by them. AG Pitruzzella rejects the idea that third parties could effectively protect their rights by bringing an action against the firms accepting the commitments.

The Opinion focuses not so much on what third parties could theoretically achieve at the national level, but on what one can realistically expect to happen in light of the principles applying to the relationship between EU and national institutions.

In this regard, AG Pitruzzella notes that a national judge, following Gasorba, will be constrained in her assessment of the compatibility of the agreement with Article 101 TFEU (para 127). For this reason, the third party could be subject to a ‘double sword of Damocles’.

This aspect of the Opinion, by taking a ‘law in action’ approach to the operation of commitment decisions in its institutional framework, invites the Court to interpret Article 9 of Regulation 1/2003 in a way that minimises some of its potential unintended consequences.


[1] ‘En premier lieu, il convient de préciser ce que recouvre la notion de “préoccupations en matière de concurrence” et quel est, en conséquence, la portée du contrôle juridictionnel que doit exercer la Cour. À cet égard, il faut garder à l’esprit que, puisque la décision d’accepter les engagements ne requiert pas qu’une infraction soit constatée, le niveau d’approfondissement de l’enquête et de la motivation auquel la Commission est tenue est moins élevé que celui qui lui est imposé dans le cas ordinaire d’une procédure de constatation d’une pratique anticoncurrentielle illicite […]’. 

Written by Pablo Ibanez Colomo

26 June 2020 at 3:34 pm

Posted in Uncategorized