Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

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Chillin’Competition 2019- REGISTRATION IS NOW CLOSED

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Thanks so much once again! Immediately after opening up registrations (and in spite of a malfunctioning link) the conference was already sold out and we have 300 people in the waitlist. Within the first 10 minutes we had over 10.000 clicks, which sets a record.

We know that many people experienced technical trouble during the first 4 minutes while others were able to register. Our apologies. We don’t know what this was due to, but we’ll do our best to release as many tickets as possible from the waitlist.

Thanks a million once again; we hope the conference will live up to the expectations!

 

Written by Alfonso Lamadrid

5 November 2019 at 10:38 am

Posted in Uncategorized

Chillin’Competition 2019- REGISTRATION IS NOW OPEN!

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You can register via this link

Written by Alfonso Lamadrid

5 November 2019 at 10:00 am

Posted in Uncategorized

Meeting and Shifting- The Burden of Proof (in Digital and Beyond)

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FT

This is the title of the last panel we will be hosting at our upcoming Chillin’Competition conference. The proposals floated to shift the burden of proof in relation to certain companies and practices were also the subject of a topical piece published yesterday in the Financial Times.

They were also the main issue I discussed in this recent piece for Competition Policy International: Shortcuts and Courts in the Era of Digitization” (accessible to CPI subscribers; in a few days we will also make it freely available here). And it was also the topic on which I focused my intervention at a talk that Pablo and I had a couple of weeks ago with the great staff of the EFTA Surveillance Authority.

In spite of recent case law, talks like this one, books like this one, and papers like this one [note the relevant contributions from two brilliant young women in academia], there’s still a surprising amount of confusion as to what this burden entails, and as to when it falls upon the authority/plaintiff and on the defendants. These are questions we will address at our conference.

I say that the reigning confusion is surprising because most complex cases eventually hinge on this question. This is THE obstacle that authorities/plaintiffs need to satisfy in any given case. At times this has not seemed to be an issue, because enforcement has traditionally focused on clear-cut cases, and because in those cases we resort to presumptions that alleviate the burden (e.g. the “by object label”).

But the greater the complexity and the competitive ambiguity of the practice, the greater the importance of the burden of proof. Indeed, a number of decisions have been annulled with regard to more ambiguous practices (e.g. for failing to properly assess the relevant legal and economic context or the counterfactual or, in other words, for trying to shift the burden too soon).

It is certainly no coincidence that there are currently two opposite trends in our field, and that these changes are being suggested precisely at the time where EU Courts are placing greater emphasis on the Commission’s obligations in this regard (this was actually the lesson of Intel and Cartes Bancaires). And it is not surprising that many of the people suggesting these changes also advocate “Taking antitrust away from the Courts” (that is actually the name of the piece!).

And it is by no means an accident that the current proposals relate to practices that have ambivalent effects (my take on that is available here). This would not be necessary in situations (e.g. cartels) where a practice can only do harm. This is not about presuming harm in the light of clear lessons from economics and experience. It is about presuming harm absent those lessons, or against those lessons. It is about a dogma, believing in what we cannot see or prove. It may be somehow contradictory to argue that there is an abundance of obvious anticompetitive practices in the digital sector, but then recommend that their existence and anticompetitive potential be presumed, not shown on the basis of evidence. If a practice is truly anticompetitive, the evidence will be there.

But, of course, in the era of digitization we cannot bother with complexity, we have grown accustomed to immediate solutions and easy fixes that address our impulses.

The problem, however, is that the law doesn’t really work like that. As observed by President van der Woude in in this must-read JECLAP piece:

“[W]here the contested conduct of the public authorities is repressive in nature, it is hard to conceive, at least in free democratic societies, that citizens and firms can be condemned on the basis of estimates, approximations or guesses, even if they are informed ones. Uncertainty must then be balanced against the requirements of the presumption of innocence […]. [T]his balance is struck by relying on legal concepts, such as the burden of proof”.

Shifting the burden of proof in a quasi-criminal context is unheard of in jurisdictions subject to the rule of law and would set a first and dangerous precedent. Would the European Court of Human Rights, the EU Courts and Courts from Member States ever accept overturning the presumption of innocence? And, in the most unlikely scenario that they did, how could one confine ripple effects beyond digital platforms, and indeed beyond competition law?

Implementing these changes would certainly make enforcement much easier. No need to bother with foreclosure, effects, indispensability or causality. We could do away with those (and, in passing, with lawyers and judges too, as they also are annoying). I guess I have more trust in competition authorities: they don’t need this to bring up good cases.

Implementing these proposals would radically transform competition, but at a cost to basic legal principles that is just too high.

Written by Alfonso Lamadrid

31 October 2019 at 5:54 pm

Posted in Uncategorized

Chillin’Competition Conference 2019- The Program

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It’s time to start disclosing some details:

The Chillin’Competition conference marking our 10th anniversary will take place on 9 December 2019 at L’Arsenal (Chaussée de Wavre 950, 1040 Bruxelles, pictured above). Registrations will open up next Tuesday (5 November) at 10.am Brussels time via a link that will be made available on the blog.

We are thrilled that the conference will feature keynote interventions by Commissioner Vestager and General Court President Marc van der Woude. We are  also very grateful to all speakers for accepting our invitation to focus on what we believe are the current key themes in competition law,  and to our soon-to-be disclosed sponsors (anyone interested can still drop us a line).

And this is this the program:

THE CHILLIN’COMPETITION CONFERENCE 2019

9.00-9.30: Registration

9.30-9.45: The 10-Year Challenge

Alfonso Lamadrid (Garrigues)

9.45-10.30: Keynote by GC President Marc van der Woude

10.30-11.30 TED@Chillin’Competition  

Philip Marsden (Bank of England, College of Europe, CRA)

Frank Montag (Freshfields)

Jorge Padilla (Compass Lexecon)

Maurits Dolmans (Cleary Gottlieb)

11.30-12.15: Keynote by Commissioner Margrethe Vestager

12.15-13.30: 10 Years of Enforcement by the European Commission 

Kim Dietzel (Herbert Smith Freehills)

Lars Kjolbye (Latham & Watkins)

Kai-Uwe Kühn (University of East Anglia and The Brattle Group)

Nicolas Petit (University of Liège)

Vanessa Turner

Chair: Lewis Crofts (MLex)

13.30-15: Lunch

15.00-16.00: A New Competition Law for a New Decade? Chillin’ with:

Renata Hesse (Sullivan & Cromwell)

Heike Schweitzer (Humboldt University Berlin, Special Adviser to Commissioner Vestager)

John Sutton (LSE)

16.00-17.15: Articulating the Effects-Based Approach

Christian Ahlborn (Linklaters)

Svend Albaek (European Commission)

Avantika Chowdhury (Oxera)

James Killick (White & Case)

Christian Riis-Madsen (GibsonDunn)

Chair: Pablo Ibáñez Colomo (LSE and College of Europe)

17.15-17.45: Coffee Break

17.45-19:  Meeting or Shifting- The Burden of Proof

Eric Barbier de la Serre (Jones Day)

Kevin Coates (Covington & Burling)

Leigh Hancher (Baker Botts)

Kristina Nordlander (Sidley)

Nigel Parr (Ashurst)

Chair: Alfonso Lamadrid (Garrigues)

19-21.00 Drinks

 

Written by Alfonso Lamadrid

30 October 2019 at 6:46 pm

Posted in Uncategorized

Comments on Android (II): follow-up questions on market definition (+ thanks for the comments!)

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I received wonderfully interesting comments to my first post on market definition in Android . That was really the blog at its best. I am really grateful

I felt I would not do full justice to the involvement of these readers if I just added a comment of mine to the pile. The insights are so powerful that it makes sense to give them more exposure (and hopefully lead to yet more comments).

Would a merger between Apple’s and Android’s app stores be unproblematic?

Chris was the commentator to break the ice. The inevitable consequence of the definition of a separate market for Android’s app stores emerged from our exchange. Taken to its logical consequences, Chris explained, the Commission’s approach implies that a merger between Apple’s and Android’s app stores would be unproblematic.

This is a counterintuitive outcome. The fact that it is counterintuitive, however, does not mean anything. Rigorous economic analysis often surprises us with outcomes that contradict our instincts. However, this conclusion could also mean that there is something funny going on.

Any thoughts in this regard would be most welcome. If there is indeed something funny going on, what is it? One possibility is that the assessment of competitive constraints cannot focus on switching alone. A second possibility is that there is scope for refining the assessment of switching (which is what Nicolas was suggesting in his comment). I will focus on the first point.

Competitive constraints: is it all about switching?

The idea that Apple’s app store does not exercise a sufficient constraint on Android’s app store (paras 652-673) relies, by and large, on switching (switching from the end-users’ perspective and the app developers’ perspective).

My immediate question here is: is there something beyond switching opportunities that we may need to consider when assessing competitive constraints? Another commentator, Andrew, gave an excellent example on supermarkets that comes across as a wonderful starting point for this discussion.

Suppose there are two supermarkets that do not compete at the retail level: each one operates in a different geographic area. However, they compete on the upstream market where they buy inputs from providers. Suppose, further, that they are the only buyers on the upstream markets, so suppliers have nowhere else to go, and cannot give up either.

Would a merger-to-monopsony between the two supermarkets of the example be unproblematic? My instinct tells me that, in all likelihood, such a merger would be blocked absent appropriate remedies (and Gianni, in his comment, makes it clear that of course it would be blocked). As a telecoms nerd, the Liberty Global/Ziggo merger, the underlying facts of which are not fundamentally different from those sketched by Andrew, came to mind.

Liberty Global/Ziggo appears to confirm that it is not all about switching (it does not seem to be framed in terms of switching anyway). The Commission identified a series of potential negative effects that would arise even when the suppliers lack the ability to switch from one to the other (or have no choice but to deal with the two buyers). The question was whether the transaction would increase the buyers’ bargaining power.

If a merger-to-monopsony could be problematic even absent switching opportunities for suppliers, perhaps competitive constraints faced by powerful buyers are indeed manifested in other ways (that is, it is not all about switching).

If this is the case, my question is: what are these other ways? Is it, for instance, buyers’ ability to refuse to carry certain products from certain providers? Why would a merger-to-monopsony reduce competitive constraints if suppliers lacked switching opportunities prior to the transaction?

Thanks a lot in advance for sharing your thoughts.

And please feel free to comment on Nicolas’ points. I understand his comments as suggesting that it may be tricky to define markets involving goods such as smartphones, which are not acquired everyday.

It could be interesting to compare the analysis in Android with the analysis of retail markets in the network industries (after all, end-users do not change providers every day, and may be faithful to some providers, in particular incumbent ones).

If you have found an embarrassing number of typos, at least you should know why by now.

Written by Pablo Ibanez Colomo

21 October 2019 at 6:02 pm

Posted in Uncategorized

Major dates not to miss: ASCOLA 2020 (Porto), Mardis and more!

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Dates not to miss

Now that we are firmly in Autumn time, dates for major events start to pile up. We thought it would be a good idea to remind you of some of the major ones ahead of us. Time to plan, as they say.

Under the leadership of the wonderful Michal Gal, ASCOLA goes from strength to strength. All competition law scholars are grateful to her. The 2020 edition of the ASCOLA conference will take place in beautiful Porto. Academics: you have until late January to submit your papers or extended abstracts. More info can be found here.

Denis Waelbroeck and Jean-Francois Bellis run the venerable Mardis de la concurrence. I am proud to have presented on selective distribution last year. This year’s programme of events is truly outsdanding (see here). It features, inter alia, Carles Esteva, Pierre Regibeau, Marc van der Woude, Fernando Castillo, as well as a lawyer that goes by the name of Alfonso Lamadrid. Not to be missed if in Brussels!

A more recent venture, undertaken by UCL and White & Case, promises to become another classic in the Brussels scene. This year it is organised by Deni Mantzari and Makis Komninos and will take place on 21 November. You can find the programme here.

And last, but not least (albeit perhaps more urgent): the College of Europe alumni in competition law organises tomorrow an event on digital competition (see here). The event will be moderated by Aleksandra Boutin and will have Thomas Graf, Silke Heinz and Thomas Kramler as its speakers. You can still make it!

Written by Pablo Ibanez Colomo

15 October 2019 at 5:10 pm

Posted in Uncategorized

Banerjee, Duflo and Kremer: Winners of the Nobel Prize in Economics 2019

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Nobel Prize 2019

I do not believe it is news to anybody reading the blog that Abhijit Banerjee, Esther Duflo and Michael Kremer have been awarded this year’s Nobel Prize in Economics. In their case, the only question was when they would get the award, not whether they would.

I thought I would write a short post to offer an appreciation of their work. As an academic, I have always regarded them as inspiring figures. In particular, Esther Duflo (just like Jean Tirole) is the sort of academic all scholars should aspire to be. If you want to be inspired too, just take a look at her superb (passionate, thoughtful, articulate) TED talk on the matters that keep her busy.

It has become fashionable in some competition law circles to be dismissive of economics: too ideological, too theoretical, impractical, not real world at all. Typically, these cliches come from people with only the most superficial understanding of the discipline.

Perhaps worse, criticism of this kind is unfair to people like Esther Duflo, who devote their professional lives to the understanding of complex problems and, by doing so, to improving the lives of millions.

I have often told my friends that, if they want to make an effort and go beyond the surface to get an idea of what economics is really about (how it addresses problems, how it improves incrementally and how it is relevant for the real world), they should take a look at Poor Economics, the book for non-specialist audiences she wrote with Abhijit Banerjee.

I guess this eventful day is as good as any other to recommend it to everyone following the blog!

 

 

Written by Pablo Ibanez Colomo

14 October 2019 at 6:23 pm

Posted in Uncategorized