Chillin'Competition

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.

I had the honour of presenting my work a few weeks ago at the Vienna Competition Law Days 2024, superbly run by Vicky Robertson and the rest of the crowd at the Competition Law Hub. My presentation (on the present and future of Article 102 TFEU) can be found here (and the paper on which it is based, here).

The predictability and administrability of the law were two of the central topics of the event (they were also the overarching themes of my own presentation). There was little disagreement in our panel about the need to craft substantive standards so that they can be applied with ease by authorities and that intervention can be reasonably anticipated by firms.

It is not unusual to frame this debate around the form vs effects divide. Such framing, I believe, misses the point: we know from experience that a form-based approach can be just as unpredictable and difficult to administer as the effects-based approach. The real debate, if legal certainty and effective enforcement are a concern, is the one between structured vs unstructured (or liquid) legal tests.

The central point I made, in this vein, is that structured legal tests are the best way to ensure that enforcement is both effective and predictable. A structured legal test is one that revolves around a fixed, stable set of conditions that do not fluctuate from one case to another.

Structured legal tests contribute to effective enforcement in the sense that they draw clear boundaries about what a competition authority needs to prove. If an agency shows that the conditions of the applicable test are met, it will have discharged its burden of proof. Attempts to introduce additional elements or considerations by firms will be irrelevant.

If, for instance, a competition authority shows to the requisite legal standard that the elements of the AKZO test are present in a given case (either pricing below AVC or pricing below ATC in addition to an exclusionary plan), the pricing strategy will be deemed abusive, without the need to take into account any other factor.

As the Court has had the occasion to clarify (in both Tetra Pak II and Wanadoo), the issue of recoupment is irrelevant to establish the abusive nature of a predatory pricing strategy. In the same vein, the General Court has recently held, in Qualcomm (predation), that evidence of exclusionary effects is not necessary to establish the abusive nature of this practice (see in particular para 521 of the judgment).

One could argue that the structured legal test might miss some nuances of the economic and legal context or that it might lead to overenforcement by failing to take into consideration some issues (such as the exclusionary impact in the case of predatory pricing).

These arguments are not persuasive. There will always be some degree of overenforcement (and some degree of undenforcement) in any legal system worthy of the name.

Structured legal tests also provide legal certainty to undertakings, in the sense that they allow them to evaluate their conduct against a fixed and stable set of conditions. They are a safeguard in this regard in that they prevent a competition authority from picking and choosing which conditions are relevant to evaluate the lawfulness of conduct in a given case.

For instance, an agency may seek to argue that, in the relevant context, pricing above ATC is problematic and should be prohibited as abusive. Similarly, it may try to argue, in an exclusive dealing case, that coverage should not be part of the analysis given the features of the relevant market.

Again, the competition authority may have a point. It could well be the case that sticking to the structured legal test in the specific circumstances of the case may harm the effectiveness of administrative action and may lead to underenforcement.

While the agency may indeed have a point, effectiveness of enforcement needs to be balanced against other considerations, not only legal certainty, but also the administrability of the law. When crafting substantive standards, we must bear in mind that private enforcement is very much on the rise across Europe and that national courts will be invited, more than ever, to engage with the interpretation and application of Article 102 TFEU.

To say that the mardis du droit de la concurrence are a classic of the conference arena in Brussels is an understatement. They have become nothing short of an institution thanks to their unique format, which allows for in-depth presentations by leading experts and meaningful exchanges afterwards.

The expert hands of Denis Waelbroeck and Jean-François Bellis have kept the sessions invariably topical and fascinating over the years. The 2024/25 vintage is not an exception, as you can see from the superb programme below:

15th October | Opening Speech, by Advocate General Athanasios Rantos (Court of Justice).

21st November | The Foreign Subsidies Regulation, by Andreas Reindl (Van Bael & Bellis).

10th December | Recent Developments on Abuse of Dominance, by Massimiliano Kadar (European Commission).

28th January | Recent developments in EU merger control, by Guillaume Loriot (European Commission).

20th February | La jurisprudence récente en matière de cartels, by Fernando Castillo de la Torre (European Commission).

12th March | Recent developments in State aid policy, by Jose Luis Buendía Sierra (European Commission).

16th April | Private regulation and competition policy, by Donald Slater (Ashurst).

20th May | Competition policy and growth in Europe: an economist’s perspective, by Adina Claici (BRG and College of Europe).

I understand there might be an additional seminar to top it all off in style. We will make sure to inform about it on the blog!

For more information on the mardis, and on how to register, see here.

Last week, the Court of Justice delivered its much-awaited judgment in Google Shopping. The ruling comes across as carefully crafted. The case raised a number of novel and complex points of law, for which the Court finds clean, elegant solutions.

This outcome was not a given. Google Shopping is undoubtedly a landmark in EU competition law, and it is well known what received wisdom has to say about so-called great cases.

What stands out, above all, is the balance that the Court strikes between coherence and effective enforcement.

Ensuring that there is a coherent approach to the interpretation and application of Articles 101 and 102 TFEU is a must when private enforcement is very much on the rise (reshaping the legal and institutional landscape in the process). Effective enforcement by competition authorities, on the other hand, is as important as ever.

The Court achieves this balance mainly by placing workable demands on the Commission, all while offering the opportunity to the dominant firm to provide additional evidence in the course of the proceedings. The technique to achieve this balance is, in essence, the one relied upon in Intel.

This post will focus on the four most salient aspects of the judgment, namely (i) indispensability; (ii) competition on the merits; (iii) causality and the counterfactual; (iv) the ‘as-efficient competitor’ test.

Indispensability

The discussion around indispensability was probably one of the most awaited aspects of the judgment (even more so, one could argue, after the General Court’s ruling, which had introduced a number of innovations, none of which have made the cut).

The Court’s reasoning does not depart from the orthodoxy encapsulated in Slovak Telekom and ensures the survival of the Bronner doctrine. Thus, evidence of indispensability is required where intervention would interfere with a firm’s right to property and freedom of contract (para 91).

This approach acknowledges something that has always been apparent from the case law: the outcome of intervention (that is, a remedy mandating the dominant undertaking to deal with third parties) is inextricably linked to the question of whether there is an infringement in the first place.

The Court applies the case law to the facts of the case and concludes that the discriminatory conduct at stake was not one that involved a duty to deal with third parties, and was therefore not subject to the indispensability condition (para 99).

It also notes that the remedies imposed by the Commission did not require Google to deal with rivals (that is, give access to the ‘shopping boxes’). Instead, the authority required the dominant undertaking to apply the same processes and methods to third parties (para 98).

There is more to write on the future of indispensability (and the Court’s choices in the judgment), which requires a longer entry (or set of entries), along with an analysis of Android Auto (which is potentially more consequential in this sense).

Competition on the merits

The victory of the broad understanding of the concept of abuse

The notion of competition on the merits is, as explained elsewhere, an irritant in the case law. It is the bridge that connects the original and the current understandings of the concept of abuse. As such, it is bound to create frictions and give rise to misunderstandings.

Google Shopping illustrates well why competition on the merits has made an unlikely comeback after more than a decade confined to irrelevance. As the case shows, the notion may be used strategically as a shield by dominant undertakings. By claiming that only ‘improper’ or ‘abnormal’ conduct falls within the scope of Article 102 TFEU, it was hoped that proving an abuse would be made more difficult.

This narrow understanding of the concept of abuse has been unambiguously rejected in Google Shopping. On this point, the Court held that the categorisation of a practice as not falling within the scope of competition on the merits can rely on a number of extrinsic factors, including the market(s) covered by it and the dynamics of competition (para 166).

Whether or not a practice falls within the scope of competition on the merits, in other words, is a context-specific exercise that can rest on considerations other than the conduct itself. The concept of abuse, by the same token, encompasses practices that are not inherently ‘improper’ or ‘abnormal’.

For instance, the Court is careful to clarify that discriminatory conduct is not inherently at odds with competition on the merits (para 186). There is no such thing as a principle of ‘equality of opportunity’ applying across the board to private undertakings.

Accordingly, discrimination (which may be manifested in a number of ways) may or may not amount to an abuse depending on the circumstances of the case.

Competition on the merits in practice

Google Shopping provided an opportunity for the Court to address an additional, related question: is it necessary to show that a practice departs from competition on the merits in every instance? The Court answers in the negative in para 165:

‘In order to find, in a given case, that conduct must be categorised as “abuse of a dominant position” within the meaning of Article 102 TFEU, it is necessary, as a rule [en règle générale], to demonstrate, through the use of methods other than those which are part of competition on the merits between undertakings, that that conduct has the actual or potential effect of restricting that competition by excluding equally efficient competing undertakings from the market or markets concerned, or by hindering their growth on those markets, although the latter may be either the dominated markets or related or neighbouring markets, where that conduct is liable to produce its actual or potential effects‘ (emphasis and translation added).

Accordingly, there may be instances in which it is not necessary to show that the practice departs from competition on the merits and, similarly, instances where it is not necessary to demonstrate the actual or potential effects on competition (that is, ‘by object’ infringements).

The judgment goes on to explain why one need not demonstrate, always and everywhere, that the practice is not an expression of competition on the merits. As the Court points out in para 166, the issue of competition on the merits is sometimes subsumed into the legal test (or ‘analytical template’).

By showing, for instance, that the Bronner conditions are met, an authority or claimant will have shown (implicitly) that the practice departs from competition on the merits, without the need to clear any additional hurdle.

Causality and counterfactual

Questions around the need to establish a causal link between the practice and any actual or potential effects are particularly likely to give rise to tensions between coherence and effective enforcement.

On the one hand, establishing a causal link between the practice and its alleged impact makes it necessary to identify, by definition, the ‘but for’ world that would have unfolded in its absence (this is a point expressly acknowledged by the Court in the Servier saga).

On the other hand, requiring an authority to define the relevant counterfactual may occasionally represent a significant burden.

The Court solves this tension by ruling, first, that the ‘causal link [between the practice and any actual or potential effects] is one of the essential constituent elements of an infringement of competition law‘ (para 224); and, second, that the dominant undertaking may rely on the counterfactual to dispute the findings of the authority (para 227).

In so doing, the Court distinguishes between the legal burden of establishing the causal link, which lies with the authority or claimant, and the evidential burden of putting forward a counterfactual showing the absence of such a link, which lies with the dominant undertaking.

This solution follows the logic of Intel (and, one assumes, operates in the same way in practice, thereby triggering an obligation on the authority when the dominant undertaking provides ‘supporting evidence’ to the requisite legal standard).

The ‘as-efficient competitor’ test

Finally, the Court makes it clear that it is not necessary to evaluate whether the rivals of a dominant firm are as efficient as the dominant firm when demonstrating the exclusionary effects of a practice (para 264).

The Court’s conclusion on this point is difficult to dispute. The idea that the analysis of the exclusionary effects involves (or requires) assessing the relative efficiency of rivals does not capture what the ‘as-efficient competitor’ test is really about (and, similarly, the purpose it serves).

The rationale behind that test is to ascertain whether the dominant firm would be able to withstand its own practice if it were subject to it (for instance, whether it would be forced to sell at a loss if it were subject to its own wholesale prices or to its own conditional rebate schemes), not whether third parties are as efficient it is.

Crucially, nothing in this section of the judgment (and, indeed, the rest thereof) appears to question the relevance of the ‘as-efficient competitor’ principle. It is expressly upheld in para 263 (which refers, in turn, to paras 163-167) and, above all, implicitly endorsed in the passages that expressly acknowledge the need to establish a causal link between the practice and any actual or potential effects.

The Journal of European Competition Law & Practice is proud to announce that it plans to publish a Special Issue on “Competition Law and Gender Perspectives”.

The interplay between Competition Law and Gender Perspectives is a growing focus across various domains – legal (procedural, substantive), economic and policy – such as in the OECD Gender Inclusive Competition Toolkit.

We would be delighted to consider proposals on aspects relating, but not limited, to the following:

• The influence of gender on market definition
• The role of gender in facilitating and investigating cartels
• Gender lens and anti-competitive effects, e.g. market power’s gendered effects such as gender-based price-discrimination, gender-based effects of mergers
• Exploring gender (equality) and public interest justification
• The influence of gender on competition procedures, e.g. gendered data in market studies, gender conscious surveys, gender conscious remedies, gender lens in ex-post evaluations, gender inclusive stakeholder engagement
• Gender considerations and industrial policies
• Institutional gender diversity at competition authorities
• Methodological interaction of competition policy with gender research
• Historical perspectives of gender’s impact on competition policy and enforcement

If you have an idea for a paper, please email JECLAP editor Lena Hornkohl (lena.hornkohl@univie.ac.at) by 15 September 2024 23:59 CET with your proposal.

Lena Hornkohl will work together with members of the DG COMP Equality Network.

Your proposal should take the form of an abstract of max. 250 words in which you outline:

• the substantive issue you would like to address;
• the contribution your piece is expected to make for the future;
• the point of view you intend to take. As usual, please clarify in your proposal
  whether you have any conflicts of interests.

If your abstract is selected for publication, we expect the final article (of around 7,000-10,000 words) to be submitted by end November 2024.

We will select abstracts to maximise diversity and balance in the Special Issue. We would be particularly keen to publish new voices and perspectives.

We will contact all authors whose abstract has been selected in due course (if there was any doubt, do not hesitate to contact Lena with any questions, as some of you have already done).

The fourth edition of the Short Course on Advanced EU Competition was organised, as always, last spring. There was so much interest in the programme this time around (thanks so much!) that we are organising a second iteration this coming November.

As it happens, the timing could not be better, given recent and expected major developments with which you are all familiar (including Illumina, Google Shopping, Booking, Intel, and, to be sure, the Draft Guidelines on Article 102 TFEU). I look forward to discussing these with participants (as usual, limited to around 25 to maximise interaction).

Just like the preceding ones, this iteration is designed with full-time professionals in mind. The course (16 hours in total) takes place online on Friday afternoon over four weeks (2pm-6pm London time; 3pm-7pm continental time).

The dates for this edition are the following:

• 8 November (agreements)
• 15 November 2024 (abusive practices)
• 22 November 2024 (digital issues)
• 29 November 2024 (merger control)

More information on how to sign up for the course can be found here.

If you were wondering, an LSE Certificate will 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 colleague Amanda Tinnams: A.Tinnams@lse.ac.uk.

The forthcoming issue of the Journal of European Competition Law & Practice will be dedicated to the memory of Professor Heike Schweitzer.

We will publish, posthumously, her very last paper, co-authored with Simon de Ridder and already available, in Open Access, here. Those among you who are familiar with Heike’s work will immediately recognise her characteristic style.

The article is an impressive tour d’horizon that cuts across all issues pertaining to the application of Article 102 TFEU, ranging from the procedural and institutional to the substantive. It reflects her usual concern with the effectiveness and administrability of EU competition law and policy.

I have no doubt it will be widely cited as a reference masterfully capturing the growing discontent with some aspects of the ‘effects-based approach’ to the enforcement of Article 102 TFEU and proposing a meaningful way forward.

Alongside her article, we publish an editorial (available for free here) celebrating her achievements as a uniquely versatile scholar. While a deeply original and innovative thinker, she would always be proud of her Ordoliberal lineage.