Chillin'Competition

The LSE Short Courses on Advanced EU Competition Law and on State Aid and Subsidies Regulation were launched a bit more than four years ago. I am really pleased that they have been received so enthusiastically by our community (so much so that we launched an extra edition of the competition law course in 2024, which finished a couple of weeks ago).

The next in line is the Short Course on State Aid and Subsidies Regulation, which will run between January and February of this coming 2025. A particularly exciting time with the many changes that the discipline is undergoing. There are still places available and it would be wonderful if you could join: all the info can be found on the link to the course here.

As usual, the short course will take place online and it is designed with full-time professionals in mind. Attendance will be capped at around 25 participants to maximise interaction (which, if you ask me, is one of the big pluses of this format: every edition is unique, and very much shaped by the discussions).

The sessions will be on four consecutive Thursdays: 6th, 23rd and 30th January, as well as 6th February (at the usual time: 2pm to 6pm London time).

An LSE Certificate will of course be available upon completion, along with CPD points for practitioners.

If you have any questions about the organisational aspects of the two courses, do not hesitate to contact my wonderful colleague Amanda Tinnams: A.Tinnams@lse.ac.uk.

ASCOLA needs no introduction in the competition law community. It has become the privileged forum for the exchange of ideas among scholars specialised in the field. The expansion it has undergone in the past few years is truly remarkable, and testament to its growing importance and the hard-work of the leaders steering the ship.

Next year’s conference (26-28th June) will take place in one of the landmarks (both in the geographic and the intellectual sense) of antitrust and competition law: Chicago. Participants will be hosted by renowned Professor Spencer Weber Waller at Loyola University Chicago School of Law.

If you are interested in taking part in the conference, the call for papers can be accessed here. As usual, the call is open to diverse disciplinary approaches: diversity is, in fact, one of ASCOLA’s trade marks.

On top of that, I very much like that organisers have identified three streams for potential participants: (i) academic papers (the general stream, for papers that have the typical length of a research paper); (ii) early-career researchers; and (iii) early project ideas (for very short submissions that seek to test new concepts or ideas).

For more information (other than that provided in the call for papers), it is probably best to get in touch with the organising team at ASCOLA2025@luc.edu. Best of luck with your submission!

This month’s issue of World Competition comes with a short piece of mine (the submitted version of which is available on ssrn here) on resale price maintenance in the aftermath of Super Bock.

I thought it interesting to say a word on it, since it is, I feel, one of these rulings that is only fully appreciated when read in conjunction with developments at the national level. Those of you who read Portuguese might want to take a look, in particular, at the judgment of the Tribunal da Relação de Lisboa following the preliminary ruling.

How does Super Bock change or refine our understanding of Article 101(1) TFEU? Prior to this judgment, resale price maintenance was considered to be restrictive of competition always and everywhere (that is, without the need to consider the relevant economic and legal context and without the need to take into account the aims pursued by the parties).

In Binon, in fact, the Court expressly dismissed the relevance of any contextual considerations when vertical price-fixing is at stake. Such an approach to the assessment of restrictions of competition was, unsurprisingly, the one followed by the Portuguese first-instance court in Super Bock.

The problem? Binon is at odds with subsequent case law, which has in turn been consistently followed by the Court in the past decade. The significance of Super Bock lies precisely in the fact that it addresses this friction and makes it explicit that the orthodox framework is also extensive to resale price maintenance.

Thus, resale price maintenance is no longer the ‘odd one out’ in the aftermath of Super Bock. Whether or not this practice restricts competition by its very nature depends on an analysis of the content of the agreement, its aims and the economic and legal context of which it is a part. The analysis, in other words, is not formalistic, but context-specific.

The impact of the preliminary ruling in Super Bock is best appreciated in light of the judgment of the Tribunal da Relação de Lisboa, which ruled on appeal in the national dispute. Following the guidance of the Court of Justice, the Tribunal found that the first-instance court had erred in law by following the Binon approach and meticuously ascertained the object of the practice in light of the factors identified in the case law.

The main lesson to draw from Super Bock is that resale price maintenance may not always restrict competition by object. It is not difficult to think of scenarios where the practice pursues a ‘legitimate aim’ within the meaning of the case law and might therefore not be caught, in and of itself, by Article 101(1) TFEU. Whether these hypotheticals will find their way in concrete cases is, alas, a different story.

This week’s post focuses on what is probably the single most complex point of law considered in the Draft Guidelines on exclusionary abuses. It is also the keystone of the whole venture, in the sense that it could mark its fate.

The case law of the past decade has very much emphasised the need to engage in a meaningful assessment of the effects of certain practices. It is now undeniable that some conduct is only caught by Article 102 TFEU where it can be shown to have an actual or potential impact on competition.

This so-called ‘effects-based approach’, now enshrined in the case law, is not a capricious hurdle aimed at making enforcement more difficult or less effective. It is rather the acknowledgement that many, if not most, practices do not necessarily pursue an exclusionary aim and, similarly, do not invariably deteriorate the competitive process (even when implemented by a dominant firm).

The (daunting) challenge, against this background, is to get the definition of anticompetitive effects right. Getting the definition right, in this context, means, first, providing the basis for a meaningful assessment (that is, one that is not merely a formality); and, second, making it possible to discern what an effect is and what it is not.

What an effect is not: lessons from the case law

Part of the difficulty that comes with fleshing out the concept is that the case law is far more illuminating about what an anticompetitive effect is not (as opposed to what it is). The issue, as the law stands, is best approached in a negative manner.

It is clear from the case law, to begin with, that an anticompetitive effect is not synonymous with harm to consumer welfare. Therefore, the former can be established without showing the latter (and, more importantly, without the latter necessarily occurring, whether actually or potentially).

Second, a mere competitive disadvantage and/or a limitation of a firm’s freedom of action do not amount, in and of themselves, to an anticompetitive effect within the meaning of Article 102 TFEU.

The latter point has long been clear. If anything, it has become even more difficult to dispute following Servizio Elettrico Nazionale and the appeal judgment in Google Shopping. As reminded in para 186 of the latter, the fact that a vertically-integrated dominant firm discriminates against its non-integrated rivals (which necessarily places them at a disadvantage) is not abusive in and of itself.

Similarly, the fact that a practice (say, a system of standardised rebates) limits the freedom of action of a dominant undertaking cannot, in and of itself, substantiate a finding of anticompetitive effects. The clarification of this point is arguably the most valuable contribution made by Post Danmark II to the body of case law.

The challenge, in theory and in practice, is to identify the point at which a competitive disadvantage and/or limitation of a firm’s freedom of action are significant enough to amount to anticompetitive effects.

Third, the fact that the rivals of a dominant undertaking lose customers as a result of the behaviour of the dominant firms does not necessarily mean that the said behaviour has actual or potential anticompetitive effects.

According to the case law, there will be no anticompetitive effects, whether actual or potential, for as long as rivals remain willing and able to compete. Post Danmark I provide an ideal case study (if only because the Court unambiguously signalled the absence of effects in light of the facts of the case and the evolution of the relevant market).

The definition of anticompetitive effects in the Guidelines (and its practical consequences)

Capturing the essence of the case law is not an easy task. Crafting a definition that is operational (in the sense that its meaning can be grasped by national courts and authorities) is even more difficult.

The Commission could not avoid, alas, trying its hand at the challenge. In para 6 of the Draft Guidelines, it proposes to define the notion of anticompetitive effects as referring to:

‘any hindrance to actual or potential competitors’ ability or incentive to exercise a competitive constraint on the dominant undertaking, such as the full-fledged exclusion or marginalisation of competitors, an increase in barriers to entry or expansion, the hampering or elimination of effective access to markets or to parts thereof or the imposition of constraints on the potential growth of competitors‘.

The fundamental point to make in relation to this definition is that it does not fully shed light on what an effect is (and, indeed, what an effect is not).

More precisely, the definition enshrined in the Draft Guidelines could be reasonably interpreted as suggesting that virtually any competitive disadvantage amounts to an anticompetitive effect. According to the current drafting, any ‘hindrance’ to the exercise of a competitive constraint would be sufficient, in and of itself, to establish an abuse.

Such an approach may not be obvious to square with the case law described above. As rulings like Servizio Elettrico Nazionale and Google Shopping show, ‘hindering‘ rivals’ ability to exercise competitive pressure does not necessarily lead to actual or potential anticompetitive effects.

The practical consequences of such an expansive understanding of the notion of anticompetitive effects are arguably more significant than the tension with some aspects of the case law.

Accepting that any ‘hindrance‘ can amount to an anticompetitive effect means accepting that pretty much any strategy implemented by a dominant firm amounts to an abuse of a dominant position. With such a broad definition, one could always make a plausible case that the requisite threshold is met.

The assessment of effects, in other words, would become a formality (actual or potential effects would always be shown to exist), rather than a meaningful one.

One can expect, in the same vein, actors in the system to exploit the expansive understanding of the notion of abuse before national courts (which, unlike competition authorities, lack the ability to prioritise cases).

If enforcement moves down this road, it may take a while before the Court of Justice is given the chance to refine the definition of effects and correct deviations from the case law. In the meantime, the legal community will have to learn to live with a significant degree of legal uncertainty around the meaning and scope of Article 102 TFEU.

A proposed definition of anticompetitive effects

One can think of a definition of anticompetitive effects that more faithfully reflects the essence of the case law and ensures, in the same vein, that the assessment remains meaningful. The notion can be construed, for instance, as follows:

‘Anticompetitive effects exist where the practice reduces rivals’ ability or incentive to compete to such an extent that the competitive pressure to which the dominant firm is subject is reduced as a result’.

Next week, I will address the ways in which this definition can be made operational (and administrable) so that it can be applied in concrete cases. In the meantime, I would very much welcome your thoughts.

‘Remedies in EU Antitrust Law‘, my latest paper, is already available on ssrn and can be downloaded here. It is based on a keynote speech delivered at the University of Mannheim upon the invitation of Heike Schweitzer. The piece is dedicated to her memory.

Remedies are now central to successful enforcement. The correct design and adequate implementation of measures ceasing the infringement are as important, if not more, as detecting and establishing a breach of Articles 101 and/or 102 TFEU.

The days of yore, where the remedy was self-executing, are long gone. With the focus of enforcement on digital markets, effective enforcement depends on specifying, in a regulatory-like way, the measures that firms need to positively (and not just negatively) implement to bring the infringement to an end.

Against this background, the paper makes one point about current administrative practice and another one about the legal landscape.

The first point is that a ‘principles-based approach’ to remedial intervention, whereby an authority refrains from specifying the ways in which the infringement is to be brought to an end, is not compelled by law and is likely to lead to suboptimal outcomes.

Such an approach to the administration of remedies can be expected to delay effective enforcement, is opaque for third parties and is inevitably a source of legal uncertainty: it may never be entirely clear whether the firm subject to the obligations is fully complying with its duties.

The second point the paper makes is that Regulation 1/2003 was probably not designed with regulatory-like intervention in mind. This reality is neither a surprise nor a criticism: as Andriani Kalintiri and I showed empirically (see here), regulatory-like remedies were a rarity under Regulation 17.

Article 7 (unlike Article 9) of Regulation 1/2003 appears to be premised on the idea that behavioural remedies are necessarily negative in nature (that is, they impose an obligation to refrain from engaging in certain conduct) and implemented on a one-off basis.

It is suggested that Article 7 could be reformed so as to introduce a structured framework giving third parties the chance to express their views on the proposed measures and to give addressees the certainty that the obligations they implement comply with the terms of the decision.

Finally, the paper also addresses some of the ongoing debates. Competition authorities are right to be cautious about the implementation of so-called ‘restorative remedies’. It is unclear that there is a legal basis for such remedies (as a matter of EU antitrust and EU law at large).

Even if there were, it is not clear that it would be desirable to embrace restorative intervention. The system already struggles with the administration of complex, regulatory-like remedies.

Adding a layer of complexity would absorb even more resources and may venture beyond what competition authorities can realistically and consistently achieve. Restorative intervention, it is submitted, is best undertaken by means of ad hoc regulation (such as the DMA).

I would very much welcome your thoughts (nothing to diclose).

Last week’s post focused on the tripartite categorisation of practices in the Draft Guidelines on exclusionary abuses. It concluded that, while the categorisation is sound and finds support in the case law, it misses a fourth family of practices (that of presumptively lawful conduct).

‘Naked restrictions’ in the Draft Guidelines

This week’s post zooms into a sui generis category, which the Commission labels ‘naked restrictions’ in the Draft Guidelines. Practices falling within this group share two distinctive features. First, they lack redeeming virtues (that is, they can only be explained as a device to exclude actual or potential rivals). This feature is the one that makes them stand out from the rest.

Second, ‘naked restraints’ are prohibited as abusive without the need to consider their effects on competition. Contrary to what is true in the default scenarios, such effects can be safely presumed. Which makes sense. It is reasonable to expect that a practice that pursues no plausible purpose other than the restriction of competition is (at least) capable of exclusion.

‘Naked restrictions’ as a reality and a necessity

The first point to make about ‘naked restrictions’ is that they are both a reality and a necessity. That they are a reality need not be explained at length. There are concrete examples in the case law showing that these practices are an integral aspect of the legal landscape.

Predatory pricing within the meaning of AKZO is one mentioned last week, but not the only one. For instance, providing objectively misleading information to regulatory authorities, which was at issue in AstraZeneca (and is topical again in the context of the Teva decision) is also abusive by its very nature.

‘Naked restrictions’ are also a necessity. According to a well-established doctrine, a practice can be subject, either alternatively or cumulatively, to both Articles 101 and 102 TFEU.

If the behaviour under consideration is restrictive by object under Article 101(1) TFEU, it stands to reason that it is also prohibited without the need to show effects under Article 102 TFEU. Reverse payment settlements, which may amount to a ‘by object’ infringement and have been scrutinised under the two provisions (including in Generics), illustrate this point particularly eloquently.

‘Naked restrictions’ or ‘by object’ abuses?

The second point relates to the labelling of practices. While a relatively minor issue in a field that places substance above form, it makes sense to say a word about it.

The question, in essence, is whether to label these practices ‘naked restrictions’ or ‘by object’ abuses. It seems to me that the latter (‘by object’) is preferable (and the one that the final version of the Guidelines would ideally adopt).

This is so, to begin with, because it is the label that the Court has consistently used since Generics (and then Superleague, and then Google Shopping). The reiteration of the formula suggests that it is now part of the acquis on Article 102 TFEU.

A second reason why the ‘by object’ label would be preferable is that its scope of application is very similar, if not identical, to the scope of ‘by object’ infringements within the meaning of Article 101(1) TFEU.

The Court has reiterated since Generics (most recently in the Servier saga and Banco BPN), that an agreement is restrictive by object under Article 101(1) TFEU when it cannot be explained other than as a means to restrict competition.

As the Court put it in para 56 of Banco BPN: ‘[…] [A]n exchange of information which, although not formally presented as pursuing an anticompetitive object, cannot, in the light of its form and the context in which it occurred, be explained other than by the pursuit of an objective contrary to one of the constituent elements of the principle of free competition must be regarded as constituting a restriction by object‘.

It is sufficient to compare and contrast the Court’s position in Banco BPN with the definition of ‘naked restriction’ given in the Draft Guidelines (in turn borrowed from para 71 in AKZO) to realise that they both concern the same range of practices. The case law would be cleaner and easier to navigate if the same phenomenon were labelled identically irrespective of the provision.

Rebutting the presumption of anticompetitive effects: ‘real and concrete possibilities’

The third, related issue concerns the rebuttal of the presumption of anticompetitive effects underpinning the qualification of a ‘naked restriction’ as an abuse of dominance. The Draft Guidelines point out that it should only be possible to rebut this presumption in rare, if not exceptional circumstances.

It seems to me that this point of principle cannot be disputed. Where the Draft Guidelines could be more specific is in relation to the (exceptional) instances where the presumption can be rebutted.

The currrent version of the document helpfully (and rightly) mentions that the bar is significantly higher than in Intel-type scenarios. However, it does not elaborate much further and leaves a great deal of scope for speculation.

The most elegant solution, and the one that is wholly aligned with the existing body of judgments, would be to draw inspiration straight from the case law on restrictions by object under Article 101(1) TFEU. One should bear in mind, in this sense, that ‘Articles 101 and 102 TFEU must be interpreted consistently‘.

The recent Servier saga has helpfully clarified (in light with the preceding cases and with AG Kokott’s own analysis in her Opinion in Generics) that there is no restriction, whether by object or effect, where there is no actual or potential competition in the relevant economic and legal context (that is, where there are no ‘real and concrete possibilities‘ of entry).

There would be no ‘real and concrete possibilities’ of entry, for instance, where the regulatory regime prevents actual or potential competition (an example at stake in E.On Ruhrgas and cited with approval by AG Kokott in the abovementioned Opinion to make this very point). The same would be true where no other firm has the ability or incentive to enter the market (for instance, because none has not taken the requisite preparatory steps to place competitive pressure on actual competitors).

As far as ‘naked restrictions’ are concerned, it is submitted that the presumption of anticompetitive effects should only be rebuttable in these same (and very narrow) scenarios. These are, incidentally, the scenarios where (as in E.On Ruhrgas) the presumption of effects underpinning a ‘by object’ infringement has been successfully rebutted by the parties in Article 101(1) TFEU disputes.

As it happens, the case law on exclusionary abuses already provides scenarios where there were no ‘real and concrete possibilities‘ of entry (and thus no abuse). One of these scenarios is found in the BEH ruling, where the General Court found that the regulatory context precluded actual or potential competition. An example of the second scenario can be found in Qualcomm (exclusivity). In that case, the customers of the dominant undertaking had no realistic alternatives.

Refining the Guidelines to make it explicit that the presumption of anticompetitive effects underpinning a ‘naked restriction’ can only be rebutted where the dominant undertaking can show that there are no ‘real and concrete possibilities‘ of entry in the market affected by the practice and therefore no actual or potential competition would greatly contribute to the clarification of the existing law of exclusionary abuses.

I have just uploaded a new paper on ssrn. It can be downloaded here and is forthcoming in the next volume of the Yearbook of European Law.

The paper is entitled ‘Restrictions by object under Article 101(1) TFEU: from dark art to administrable framework‘. It may be legitimate to wonder whether yet another paper on this topic was really needed. I found myself hard at work on it before noticing for three main reasons.

First, there have been some key developments over the past year, including Superleague, the Servier saga (see here and here), FIFA v BZ and Banco BPN. These judgments have refined the existing framework in some respects and clarified the analytical structure in others. Taking stock of this crucial year for Article 101(1) TFEU felt indispensable.

Second, the Court had consistently held that a restriction by object must consider not only the content of the practice, but also its objetive aims and the legal and economic context of which it is a part. This formula is well known, but what it involves in practice is something that has only been seldom discussed in the literature.

A significant fraction of the paper explains, in light of the relevant case law, how the economic and legal context can influence the legal qualification of agreements and what objective aims the Court has considered to be legitimate.

In the coming weeks, I will be sharing on the blog some concrete examples of how the Court’s analytical framework operates in practice, and what it means for specific categories of conduct.

One of the main conclusions that I draw in this regard that the evaluation of the object of agreements is not only predictable and administrable, but also flexible, in the sense that it adapts to the features of the agreement and the surrounding context.

As a result, establishing the object of an agreement is straightforward when it makes sense for it to be and difficult when it needs to be.

Accordingly, the annulment of some decisions, whether at the national or the EU levels, should not be interpreted as meaning that the ‘by object’ route is demanding for an authority. It simply means that the ‘by object’ route was not the most obvious path in the specific circumstances of the case.

Third, changes in the enforcement patterns of EU antitrust provisions mean that discussions around the scope and meaning of the notion will become more frequent and pronounced than they have until now. The rise of private enforcement inevitably increases the potential for legal fragmentation.

Against this background, it came across as desirable to provide some structure to the case law. From a normative perspective, moreover, there appears to be some scope for the streamlining of the existing doctrines, so their meaning and operation become clearer.

I take this opportunity to thank those who took the time to comment on the piece as well as to this year’s College of Europe students, with whom I discussed an earlier draft. And very much look forward to your comments. As you know, I have nothing to disclose.

As evidenced by the many conversations it has initiated, the Draft Guidelines on exclusionary abuses issued back in the summer provide a good basis to think systematically about Article 102 TFEU and the evolution of the case law over the past couple of decades.

This post is the first of a weekly series engaging with the points addressed by the Commission in the document and discussing whether, and how, the review exercise can contribute to making enforcement both more effective and more predictable.

The Draft Guidelines are rich and offer a number of angles to take. It seemed to me that the obvious starting point is the tripartite categorisation of conduct, if only because much of the document (and many assumptions underpinning the analysis) revolves around it.

I assume every reader knows that the Commission identifies three broad families of potentially abusive practices: (i) so-called ‘naked restrictions’; (ii) those where the anticompetitive effects are presumed and (iii) those that require a case-by-case assessment of their impact.

The tripartite distinction makes sense and faithfully captures the essence of the case law. From an enforcement standpoint, it is consistent with the ambition of favouring the administrability of Article 102 TFEU.

That some practices are abusive by their very nature (whether we call them ‘naked restrictions’ or abuses by object) cannot be seriously disputed. It is an integral feature of the case law, and a useful one at that: if it did not exist today, the Court would create it.

By definition, conduct that cannot be explained other than as a means to restrict competition falls (and should fall) within the scope of Article 102 TFEU. There is no need for an authority or claimant to show any actual or potential anticompetitive effects in such instances.

My only suggestion about this first category is that predatory pricing within the meaning of AKZO, even though not qualified as such in the Draft, is emphatically a ‘naked restriction’. Arguably, it is the single most prominent example of the category.

It is sufficient to compare and contrast para 71 of AKZO and the definition of ‘naked restriction’ given by the Commission: the former is the direct inspiration of the latter. It would be illogical not to treat it as abusive by its very nature.

It is also difficult to dispute that the anticompetitive effects of some practices are presumed and thus that the creation of a specific category necessarily in relation to these practices is warranted.

Loyalty rebates (that is, rebates conditional upon exclusivity) feature prominently in this category. The Intel judgment of 2017 made a fundamental contribution to the case law in that it clarified that the presumption of anticompetitive effects underpinning Hoffmann-La Roche can be rebutted (it may be rebuttable, but it remains a presumption).

There is also a presumption of anticompetitive effects (and this is another good example in the Guidelines) where ‘margin squeeze’ conduct leads to negative spreads (that is, where the wholesale price the dominant firm charges to its downstream rivals is higher than the retail price it charges to end-users)

I would argue that the fundamental (and, I would add, necessary) contribution that the Draft Guidelines make to the above is that they acknowledge the difference between, respectively, ‘naked restrictions’ and Intel-type scenarios. The latter cannot be treated as ‘naked restrictions’, if only because they can be rationalised on pro-competitive grounds.

It is no less valuable that the Commission clarifies that the bar would be relatively higher if a dominant undertaking were to argue that a ‘naked restriction’ should not be prohibited as abusive in a particular instance. The question of where exactly one should place the bar in relation to these practices is one that I will address in the second post of this series.

The main comment I would make about the tripartite distinction is that it is missing a fourth category, that of presumptively lawful conduct.

The case law is unequivocal about the existence of this family of practices. Acknowledging its existence in the final version of the Guidelines would not only complete the codification exercise but would also contribute to the declared goal of enhancing legal certainty.

It has been clear since Hoffmann-La Roche that the category of presumptively lawful conduct encompasses a rebate that is genuinely conditional on the volume supplied (that is, ‘a simple quantity rebate linked solely to the volume of purchases‘).

The scope of this category would be clarified in Post Danmark II, where the Court held that it comprises rebates that are granted ‘in respect of each individual order‘ and which therefore correspond ‘to the cost savings made by the supplier‘. It is admittedly a narrow range of practices, but a range nonetheless.

Following Post Danmark I, moreover, there should be little doubt that above cost unconditional prices are presumptively lawful. If anything, the Court went further in its judgment, as it suggested that unconditional prices are unlikely to have anticompetitive effects where they would allow to cover ‘the great bulk of the costs attributable to the supply of the goods or services in question‘.

By extension, a practice cannot be qualified as an abusive ‘margin squeeze’, where the margin between the wholesale and the retail prices would not force the downstream division of the dominant firm to sell at a loss (in the sense that the spread between the former and the latter prices give the downstream division a sufficient margin to sell above cost).

The four categories in the case law are summarised in the table below. Next week, I will say a more detailed word about ‘naked restrictions’ (including whether it is more appropriate to call them abuses by object). In the meantime, I very much look forward to your comments.

Category	Rationale	Examples	Case law
Presumptively lawful	Expressions of ‘on the merits’ competition	Prices x>ATC Volume rebates	Post Danmark I Post Danmark II
Case-by-case analysis of effects	Ambivalent effects on competition	Standard rebates Tying in tech	Post Danmark II Android
Anticompetitive effects presumed	Likely to have negative effects	Loyalty rebates Negative spread	Intel TeliaSonera
‘Naked restrictions‘	Only explanation is exclusionary	Predatory pricing Sham litigation	AKZO ITT Promedia

If there are two eternal truths about competition (and strategies to restrict competition), they must be the following. First, State regulation is always the most effective mechanism to prevent the emergence or growth of a rival. Second, the declared goal of some of the most egregious restrictions of competition is often the protection of consumers.

I am frequently reminded of these truths whenever I read about the various tactics that the meat industry displays to curtail the growth of plant-based alternatives to their products, which are increasingly popular as more environmentally-friendly (and typically healthier) options.

The most salient (and probably most effective) of these tactics involves lobbying governments and legislatures to ban, by law, the use of terms such as ‘burger’ or ‘sausage’ in vegan or vegetarian products. Given the clout that these incumbents have, it comes as no surprise that lobbying efforts have delivered the expected results in a number of Member States (see for instance here) and that measures have been contemplated in others (see here).

These measures are invariably put in place in the name of consumer protection. Because this justification is not particularly effective at concealing the underlying (and fairly transparent) motivation, it is equally unsurprising that regulatory bans have been found by the Court of Justice to run counter to secondary EU law (see here for its judgment in Protéines France, delivered last week).

One question, against this background, is whether competition law has a role to play when addressing conduct and regulation aimed at hindering the growth of emerging players in this space (including both plant-based and lab-based alternatives to meat).

Insofar as regulatory bans involve, by definition, State intervention, the application of Articles 101 and 102 TFEU is not possible. In principle, restrictions that are not attributable to the behaviour of undertakings (as Deutsche Telekom would confirm) escape antitrust scrutiny. It is the privileged realm of the State-action doctrine.

This said, one can conceive a number of scenarios in which cooperation with the object of distorting competition in this space could be tackled by Articles 101 and 102 TFEU.

There would be an infringement, for instance, where State intervention requires or favours the implementation of restrictive conduct by private undertakings. This old doctrine was discussed by the Court in, for instance, CIF.

Suppose that key players along the value chain (meat producers and grocery chains) get together to agree on some guidelines about the labelling and presentation of plant-based alternatives (as in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied) and that, subsequently, the government rubber-stamps the agreement. Such a scenario would be clearly caught by Article 101(1) TFEU (and some variations thereof are not inconceivable in the real world).

Consider a second scenario. Suppose that the associations of meat producers and wholesalers demand that grocery chains sell plant-based alternatives in different aisles as a condition for the supply of their products. Such a decision would also be caught, by its very nature, by Article 101(1) TFEU.

A variation of this second scenario would include an instance in which an association of meat producers starts a disparagement campaign against plant-based alternatives (arguing, inter alia, that they are unsafe to eat, or that they induce nutritional deficiencies). The ‘other’ Hoffmann-La Roche judgment (the one delivered in 2018) makes it clear that such strategies may amount to a restriction by object.

Another question that emerges is whether these are practices that should be prioritised by competition authorities. Given the potential benefits for society in terms of emissions and environmental footprint, and given the fact that they are innovative propositions adding competition and dynamism to the market, one could convincingly argue that the case for prioritisation, in the current (and rapidly changing) climate, is very strong.

There’s still a week for you (or your under-30 students/colleagues/friends) to submit a paper for the 5th Rubén Perea Writing Award. As many of you know, our friend and colleague Rubén Perea Molleda passed away five years ago just when he was about to start a promising career in competition law following his graduation from the College of Europe. Rubén remains very present in the memory of everyone who had the chance to cross paths with him. In his memory, we created a competition law writing award. The 5th edition is still open for submissions, but the deadline is now only one week away. As in previous editions, the winning paper will be published in a special issue of the Journal of European Competition Law & Practice, together with a selection of the best submissions received. Who can participate? You may participate if you remain below the age of 30 by the submission date (i.e., if you were born after 15 October 1994). Undergraduate and postgraduate students, as well as scholars, public officials and practitioners are all invited to participate. What papers can be submitted? You may submit a single-author unpublished paper which is not under consideration elsewhere. The paper may be specifically prepared for the award or originally drafted as an undergraduate or postgraduate dissertation or paper. The paper must not exceed 15,000 words (footnotes included; no bibliography needed). Prior to submission, please make sure your paper follows the JECLAP House Style rules, which can be found here. How to submit? Please submit the paper via this link: https://mc.manuscriptcentral.com/jeclap. IMPORTANT: As you go through the submission process, make sure that in Step 5, you answer YES to the question “Is this for a special issue?”, and indicate that your submission relates to the Rubén Perea Award. What is the DEADLINE? Papers have to be submitted by 23.59 (Brussels time) on 15 October 2024.