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Dissertation Summaries (4) – LLM in IP and Competition Law 2009-2010
The Standard of Proof under Articles 101/102 TFUE – Which lessons to learn from Merger Proceedings? – Benjamin Disteche
Over the past years, the case-law delivered in the field of merger control, in particular following Airtours, Schneider and Tetra Laval, has little by little increased the standard of proof in EC Merger Regulation. By contrast, under the impetus of the Court of Justice, the evidentiary thresholds which the Commission must meet under articles 101 and 102 of the TFEU have seemed to progressively decline. Whilst there has been little debate on this issue, the purpose of this dissertation is to verify whether the emerging discrepancy between the ECMR and Articles 101/102 TFEU is appropriate or, in the alternative, should be eliminated.
Dissertation Summaries (3) – LLM in IP and Competition Law 2009-2010
The Brussels I Regulation and intellectual property disputes : which way forward? – Willem de Vos
The present dissertation addresses two specific problems relating to the Brussels I Regulation and intellectual property disputes: the exclusive jurisdiction issue and jurisdictional problems arising in situations involving multiple defendants. Whilst it intends to review those problems in depth, the scope of the research is restricted to patent litigation. Following a brief historical background, the dissertation first provides an overview of the current state of the law. It then reviews the solutions enshrined in a General Study ordered by the European Commission and referred to in the Green Paper, and by the Principles for Conflict of Laws in Intellectual Property (CLIP) drafted by the European Max Planck Group. Finally, the proposed amendments to the Brussels I Regulation are discussed, with a specific emphasis being placed on issues of coherence and effectiveness. In this context, the dissertation also reviews proposals for an enhanced patent system (e.g., European Patent Court, Community patent, EPLA). In conclusion, the dissertation will seek to formulate public policy proposals.
Dissertation Summaries (2) – LLM in IP and Competition Law 2009-2010
Which Regulation for Search Engines? – A Review of the Intellectual Property, Competition and Privacy Law Issues – Anastacia Chaidron
Search engines’ business practices, and in particular those of the leading search company Google, raise an increasing number of issues at the intersection of several bodies of law. In so far as IP issues are concerned, the use of terms that are also trademarks for meta tags, keywords suggestion tools, keyword selling and linked advertisements, Google Images’ thumbnails, Google News and Google Book Search, generate a spate of intricate legal questions which range from trademark protection to copyright laws. The same holds true of Google’s prominent market position and conduct, which are increasingly being scrutinized by competition authorities, in the US and in Europe. Finally, the collection (and commercial use) of personal data sparks a great deal of issues in respect of privacy law – and consumer protection regulation.
The present dissertation purports to review those issues and, in turn, pleads for a regulation of search engines, by means of a balance of interests. It examines the costs and benefits of various regulatory approaches, and considers whether a search-engine-specific “hard”, binding regulatory framework is the most appropriate approach.
Dissertation Summaries (1) – LLM in IP and Competition Law 2009-2010
We are closed
With best wishes for the holiday season, Alfonso and I would like to thank you again for your visits over the past months. Feeding this blog is a lot of work great fun. Merry christmas and happy new year to all of you. We will be back in early January.
Meanwhile, I will post on this blog brief summaries of the dissertations which my students of the LLM in Competition and IP law have to submit in 2010.
Alfonso and Nicolas
Joke on Economists
The joke was attributed to Paul Samuelson, a major american economist who passed away a few days ago. As explained here by Edward Glaeser, Samuelson’s is the person who “forever fused economics with math“.
(Image possibly subject to copyright: source here)
The Orwellian Numbering of Article 101 TFEU
For all Orwell’s 1984 fans, the new numbering of former Article 81 EC involves a puzzling, unfortunate, coincidence. In Orwell’s brilliant novel, Article Room 101 is “a torture chamber in the Ministry of Love in which the Party attempts to subject a prisoner to his or her own worst nightmare, fear or phobia“.
As argued by many competition practitioners lately, the fact is that applying Article 101 TFEU – and in particular, Article 101(3) TFEU – is akin to entering into a room of intellectual contorsions, risks and uncertainties of Orwellian magnitude. Thanks to my colleague Christian Bergqvist for the pointer.
(Image possibly subject to copyright: source here)
We Can’t Talk about Pricing…
Skimming through some US antitrust cases I came across an interesting passage that I confess I’d never read before (it’s one of those ‘smoking gun’ sort of things that somehow always catches our eye). This is an unaltered excerpt of the 5th Circuit’s Opinion in US v. American Airlines 743 F2d 1114 United States v. American Airlines Inc L
“For some time before February 1982, American and Braniff were competing fiercely for passengers flying to, from and through Dallas Fort Worth, by offering lower fares and better service. During a telephone conversation between Robert Crandall, American’s president, and Howard Putnam, Braniff’s president, the following exchange occurred:
Crandall: I think it’s dumb as hell for Christ’s sake, all right, to sit here and pound the * * * * out of each other and neither one of us making a * * * * * * * dime.
Putnam: Well– Crandall: I mean, you know, goddamn, what the * * * * is the point of it?
Putnam: Nobody asked American to serve Harlingen. Nobody asked American to serve Kansas City, and there were low fares in there, you know, before. So–
Crandall: You better believe it, Howard. But, you, you, you know, the complex is here–ain’t gonna change a goddamn thing, all right. We can, we can both live here and there ain’t no room for Delta. But there’s, ah, no reason that I can see, all right, to put both companies out of business.
Putnam: But if you’re going to overlay every route of American’s on top of over, on top of every route that Braniff has–I can’t just sit here and allow you to bury us without giving our best effort.
Crandall: Oh sure, but Eastern and Delta do the same thing in Atlanta and have for years.
Putnam: Do you have a suggestion for me?
Crandall: Yes. I have a suggestion for you. Raise your goddamn fares twenty percent. I’ll raise mine the next morning.
Putnam: Robert, we–
Crandall: You’ll make more money and I will too. Putnam: We can’t talk about pricing.
Crandall: Oh bull * * * *, Howard. We can talk about any goddamn thing we want to talk about.
Putnam did not raise Braniff’s fares in response to Crandall’s proposal; instead he presented the government with a tape recording of the conversation.
(Image possibly subject to copyrights: source here)
Antitrust goes political
In the global world we live in, US parliamentary representatives now directly write to the EU administration requesting it to speed up the review of business transactions involving US firms (!).
On 24 November, John Kerry and Orrin Hatch took the lead of a group of 59 Senators to request the EU Commission to quickly close its review of the Oracle/Sun Microsystems merger, approved earlier by the DoJ. Obviously, this is no more than political gesticulation. Yet, the context surrounding this letter exhibits again the GE-Honeywell-reminiscent “patronizing rethorics” which pollute transatlantic cooperation between competition agencies and, incidentally, affect adversely the interests of the firms under review.
In a nutshell, the Senators argue that since US agencies found no antitrust issue, it would be odd for the EU to raise competition concerns. The words used by Senator Hatch are crystal-clear:
“This transaction has been thoroughly reviewed by the United States Department of Justice, which has decided to take no action. Therefore, I hope the EC will quickly conclude their investigation into this transaction.”
Of course, there are many compelling reasons why an additional review of the EU is legitimate. The US review deals with the merger’s effects only on US territory, and not in the EU. In addition, one may argue that the intervention of a new agency is actually a good thing. First, the US agencies may be wrong on the substance. Second, the US may also be biased when it comes to a transaction involving US firms active on global markets.
Overall, rather than writing to an external agency on which they have no legal influence whatsoever, US Senators should seek to use their legislative powers (if my recollections are correct, they have a say on external relations) to devise a credible US position re. the way forward in terms of global antitrust.
This is also – although slightly different – the position of Commissioner Kroes, who urged the Senators to focus on other, more important, issues… As reported by the AP:
Kroes slammed the senators for “interfering in someone else’s decisions rather than taking the most important decision that you have control over: improving health care.”
“Is this really more important than fixing your own health care system?” she asked in a speech, adding that the senators needed to get their priorities straight.
I paste below the official text of the letter.
“As fellow government officials committed to the principle that competition is the cornerstone of healthy economic growth, we would like to take this opportunity to share our thoughts with you as to the proposed acquisition of Sun Microsystems, Inc. by Oracle Corporation. In addition, due to Sun Microsystems’ deteriorating financial condition and the possible negative effect on employment of the company’s workforce, we respectfully request the European Commission expedite the completion of its investigation into this transaction.
The United States Department of Justice, after an intensive investigation, closed its inquiry into this transaction without taking any action. In fact, the Justice Department did not find documentary evidence that this acquisition would harm competition. We recognize that the European Commission has a sovereign right to thoroughly investigate transactions where corporations utilize the European Union’s marketplace. Further, it is our understanding the Commission is concerned about competition in the database software market. However, we have been informed by Sun Microsystems that their subsidiary, which competes in this specific market, generates only €17 million in revenue and that the same market has competitors with capitalizations of tens of billions of Euros.
Unfortunately, Sun Microsystems’ financial position has become more precarious and the Commission’s inquiry has continued. Some have raised concerns over the company’s ability to continue to employ its thousands of workers. Accordingly, we respectfully request the European Commission complete its investigation of this transaction as quickly as possible.
Thank you for your attention to this matter“.
(Image possibly subject to copyrights: Source here)
Lost in Semantics
Pursuing the “Lost in” post series initiated a few weeks ago, and chasing possible inconsistencies in EU competition law, I recently noticed that Regulation 2658/2000 and its accompanying set of Guidelines on Horizontal Cooperation Agreements use a different wording to regulate the – almost – same categories of horizontal agreements.
Regulation 2658/2000 block exempts “specialisation agreements“. This expression is in turn defined under Article 1 of the Regulation. Pursuant to this provision, specialisation agreements cover:
“(a) unilateral specialisation agreements; or (b) reciprocal specialisation agreements; or (c) joint production agreements”.
Now, let’s turn to the Guidelines. At §§78 and following, the Guidelines refer generally to “production agreements” rather than to “specialisation agreements“. This, in and of itself, is already slightly confusing as what was a sub-example in the Regulation (see (c) above), becomes a generic type of agreements. The Guidelines further blur the dividing lines defined in the Regulation in stating that “production agreements” cover (§79):
“Joint production agreements; … unilateral or reciprocal specialisation agreements; … and subcontracting agreements (emphasis added)”…
The bottom line: messy semantics do not make good law.
(Image possibly subject to copyrights. Source here)
Chillin'Competition 
