Chillin'Competition

Next Monday at 10am we will be posting here a link to register to our litigation workshop  on the 3rd of July (remember that seats are very limited this time -not looking for sponsors equals smaller venue- and that the last event “sold” out in 6 minutes…).

Since we are trying out a new and more dynamic/ interactive format we do not yet have a traditional programme. Here is nonetheless some additional information which you might find useful:

The title of the workshop will be “EU Courts and Competition Law: Myths, Gaps and Challenges“. And that is what we want to discuss. Speakers and attendees will have a chance to reflect on a variety of topics related to the role of EU Courts in competition law matters.

We did not exaggerate when we said this would be a high-level event. The list of confirmed speakers so far includes representatives of the EU Courts like Advocate General Nils Wahl and General Court Judge Krystyna Kowalik-Bańczyk, former GC Judge Nicholas Forwood (White&Case), specialized agents of the Commission’s Legal Service, namely Fernando Castillo and Eric Gippini (co-organizers and authors of the book we will also be presenting) as well as Nicholas Khan; high-level academics including Anne-Lise Sibony (Univ. Catholique de Louvain), Pinar Akman (University of Leeds) and our very own Pablo Ibañez Colomo (College of Europe, LSE and Chillin’Competition), as well as eminent and Court-experienced practitioners like Jean François Bellis (Van Bael & Bellis), Denis Waelbroeck (Ashurst), Thomas Graf (Cleary Gottlieb), Trevor Soames (Quinn Emmanuel), José Luis Buendía (Garrigues) as well as myself, Alfonso Lamadrid (Garrigues).

Attendees will also have a chance to contribute to the discussions. We very much look forward to seeing you there!

Yesterday I presented at an event hosted by Sidley Austin and organised by ACT (nothing to disclose, in case you are wondering). As you know, I have been following all issues relating to geo-blocking and Digital Single Market with a lot of interest, and this event was a great occasion to exchange ideas about ongoing discussions on the interface between copyright reform and EU competition law.

The slides I used can be found here and the short note I prepared for the occasion, here.

On the interaction between copyright and competition law

One of the key points I emphasised during my presentation is that copyright cannot be understood without competition law, and vice versa. In the same way that competition law enforcement may have an impact on copyright, competition law analysis may very well change if the underlying ‘economic and legal context’ changes – just think of E.On Ruhrgas, which is one of the cases I mentioned and which exemplifies this idea particularly well.

I have lost count of the times I have explained why I believe the ongoing Pay TV case is controversial (most recently here in an event that took place last month). The case would be far less controversial if ongoing reforms are passed, and (at least some) online broadcasts become subject to the ‘country of origin’ principle, which currently applies to satellite.

On the decentralised enforcement of EU competition law

As the event was attended by copyright lawyers, I also emphasised that enforcement does not only come from the Commission. Intervention may originate in a dispute before a national court, or in a decision adopted by an NCA. After all, Coditel II and Murphy, the two key cases in this discussion, reached the Court of Justice through a preliminary reference.

This insight is important to put in perspective some of the most recent developments in the Pay TV case. There have been hints implying that the Pay TV case should be understood as a one-off initiative, and that the Commission would seek to ensure that small film producers are not affected by a finding of infringement. Insofar as the enforcement of Articles 101 and 102 TFEU is decentralised, any hints in this sense provide only limited relief – they do not and cannot rule out action at the national level (just think of what is going on in relation to online selective distribution and online hotel booking!).

On freedom of contract and secondary law

I have come to understand that it is speculated or argued in copyright circles that geo-blocking could be saved by a reference to ‘contractual freedom’ in the so-called SatCab Regulation. We competition lawyers have head these arguments before. It is clear to us that a cartel agreement – or any other agreement that runs counter to Article 101 TFEU – could not be saved in the name of contractual freedom, and that primary EU law would in any event take precedence over the Regulation, if eventually adopted.

I took an example from Microsoft to illustrate this idea. As many of you remember, there was a section in the decision devoted to whether the notion of interoperability used by the Commission was in line with the way in which the concept was defined in the Software Directive (at the time, Directive 91/250). The GC, rightly and uncontroversially, stated that this discussion was ultimately irrelevant, as a Directive cannot constrain the scope of action under Article 102 TFEU.

This blog has always been a bit Court-centric, in the sense that we typically pay more attention to what comes from Luxembourg rather than to what comes from Brussels. To our mind that is logical, but it also is certainly not the general rule. Our forthcoming workshop on EU Competition litigation (see here) is a testimony to that approach.  And this post aims at giving you an example of the sort of issues that we would like to discuss at the workshop.

Most of the criticism to the case law of EU Courts in the competition field has focused on abuse of dominance cases. And when any commentator  -ourselves included- criticizes or discusses the case law, we all tend to focus on the substantive legal tests applied to discern the legality of a given conduct (we discuss presumptions, capability, likelihood, the need to show foreclosure and the relevant extent of foreclosure, etc). All those are extremely relevant, and there are arguably gaps in the law, but we may be missing out something; the title of this post may admittedly give you a hint.

Back in March we organized a sort-of- high-level-Spring Meeting in Madrid to discuss the most important competition cases of the past 20 years with some of the people who worked closely on them. One of the speakers at this event was Eric Gippini-Fournier, from the Commission’s Legal Service. Readers of this blog know Eric from, among other things, his Friday Slot interview and for being –together with Fernando Castillo- the author of this gem of a book and –also with Fernando- co-organizer of our litigation workshop.

Many also credit –or rather blame- Eric for some of the case law regarding abuse of dominance, as he was a successful Commission lawyer in some of the most controversial unilateral conduct Court cases in recent years, including  Michelin II, Lélos, Telefónica, Wanadoo, Astra Zeneca, Tomra or Post Danmark II. Few people, if anyone, have comparable litigation experience in Art. 102 cases. During his intervention in Madrid Eric logically defended the Court’s approach to several of these cases, and also made an important point that I had not really heard before, or not so clearly put. He explained that, in his view, the strict case law on Art. 102 and the concept of special responsibility as interpreted by the Courts only makes sense provided that the market definition and the assessment of dominance are serious, thorough and strict. He noted, however, that the Court’s ability to exercise its review, to give guidance and to advance the law has been hindered by applicants’ unwillingness or ineffectiveness to challenge market definition and/or dominance in Court (perhaps that also had to do with the Commission historically prioritizing cases where these questions were not in dispute). And as regards dominance, even when it is challenged, the discussion remains often at the level of market shares and there is comparatively little recourse to the sophisticated tools and methods routinely used, for example, in merger control, to assess the competitive constraints and the margin for independent action of the dominant company.

All this explains why in this area we are stuck in the same place as 30 years ago, using rudimentary tools and assessments and most often looking only at market shares (an approach that has been largely abandoned in other jurisdictions as well as in the EU when it comes to merger control). Even “old” cases such as Hoffmann-La Roche discuss in detail the competitive constraints faced by the company, in a manner that has become rare today.  

There may be a negative externality in academic commentary in this area that has contributed to hiding a possible problem. Market definition and dominance issues are so factual and case-specific that commentary on the case law dealing with them is surprisingly scarce (people other than parties to the cases understandably care more about substantive principles of general application). I, for one, only know of one recent article in years that has tried to analyze the stance of the EU Courts in this regard (which underlines that market definition involves many legal, factual and logical assessments subject to full, nor marginal, judicial review).

Market definition and dominance may thus very well be the elephant in the room when it comes to judicial review of abuse of dominance cases (even if these are by now almost extinct –and I mean the Court cases, not the elephants) (for more on elephants from me –really- see here from min. 3.28 onwards). Whilst everyone acknowledges that market definition’s in-or-out methodology is by nature inaccurate and prone to errors, in the absence of a better tool we continue to rely on it. And with a sufficiently contrived/procrustean market definition (see here, also the comments, for our best examples), almost any case may fly. And that is partly because the inaccuracies inherent market definition fail to be corrected in the assessment of market power, due our excessive reliance on market shares [an exception –although again in the merger field was Microsoft/Skype-; by the way, given the Commission’s efforts to conveniently ignore this Judgment they could have as well let us win it! 😉 ]

Admittedly, one could try to see cause for optimism. If one reads carefully the Judgments in cases like Microsoft (2007), Clearstream (2009), Astra Zeneca (2010) or CEAHR (2010) the picture that emerges is one of thorough review of market definition (this even if the Court was formally undertaking a marginal review), and of abandonment of market-share only approach (Cisco, 2013)).

On the negative side, however, the problem is that these cases don’t get to the General Court anymore. Why would the Commission take the odds of facing such a scrutiny? And why would companies take the risk of not offering commitments when the (even if sometimes misleading) statistics suggest to them that taking a case to Court may be hopeless? And since commitments decisions do not require complex assessments of market definition and dominance, we are left without any Commission guidance on this front [a bit like what happens in Art.101(3)]. And this is a problem for national competition authorities and national judges as much as it is one for companies and their economic and legal advisors.

What now then? In my view, it is clear that the Commission is unlikely to shake things in this area, as relying on market shares in 102 cases is pretty comfortable, particularly when one gets to define the relevant market. With the General Court effectively sidelined from this debate for now, the initial reflex could be to expect the CJEU to provide guidance in the form of preliminary rulings. In this case, however, that might not happen, as national Courts are most unlikely to refer questions that they see as not having to do with the interpretation of law, but with economic of facts, and as such inadmissible.

For further reflections on this issue and on the possible way out, join us on the 3^rd of July in Brussels.

In just four weeks, on Monday 3 July we will be holding a high-level half-day (15-19 p.m.) workshop in Brussels to discuss the role of the EU Courts in competition law.

This workshop will be jointly organized by Chillin’Competition (i.e. Pablo and myself), Fernando Castillo and Eric Gippini, from the Commission’s Legal Service, authors of the book “Evidence, Proof and Judicial Review in EU Competition Law”, that we will also be presenting at the workshop.

We would like to explore both what has happened in the past 60 years and what could, should or might happen in a new scenario, with an enlarged General Court, a fall in the number of annulment proceedings and an apparent rise in preliminary references following the decentralization (and delegalization?) of competition enforcement, among others. We intend to discuss theory and practice objectively, from different perspectives, and to identify possible myths, challenges or gaps concerning judicial review of competition cases.

These are, as you know, among our preferred topics here at the blog (see e.g. here and here) as well as the subject-matter (in part) of Pablo’s forthcoming book, “The Shaping of EU Law”.

In order to gather different expert views we will be inviting approximately 15 high-level speakers from the Institutions (we already have high level representatives from both Courts and the Commission), academia and private practice to share a brief reflection (within 5 minutes) on any issue related to judicial review on which they may have strong or interesting views  (for an example, click here). We will then have some time to discuss every point also hearing the views of other attendees.

The workshop will take place at the University Foundation/Fondation Universitaire in Brussels (Rue d’Egmont, 11, 1000 Brussel)

We will very soon be back with more information. We will be personally inviting a number of people, and will then open up registrations (for free) to anyone interested (although places are limited this time to 140).

Registrations will be possible via a link that we will be making available on the blog on 19 June at 10.am 

An exception: anyone willing to come from the GC / CJEU will have a guaranteed seat (in that case please just drop us a line).

P.S. We hear that at a recent conference at Oxford University attendees were given ice cream; well, we welcome competition and accept the challenge…

One of the big events of the season is the launch of Philipp Werner’s and Vincent Verouden’s, EU State Aid Control. Law and Economics, which came out a few months ago. It is a remarkable achievement for which they should be congratulated. Together with a large team of authors, they have truly managed to blend legal and economic analysis. It would have been already impressive as a law book tout court, but this aspect makes it special.

I was honoured that they asked me to review the book for the European State Aid Law Quarterly. My review has just come out, and has done so in a special 15^th anniversary issue that matches the importance of the book (congratulations to the EStAL team, by the way: what they have achieved is wonderful too). When browsing through the review, I was proud to see an article co-authored by a former student of mine, Sylvain Petit, together with Adrien Giraud, a good friend of the blog.

Read the rest of this entry »

Applications for the Brussels School of Competition specialised LL.M. in Competition Law and Economics are now open. I have been teaching at the BSC since its creation, and despite the painful exam grading process [which occupied me for a couple of flights this week; yes, Brussels wasn’t big enough for Trump and me and I had to leave], it is always a great experience. It’s hard to find more motivated students, a better crafted programme and a more impressive faculty) (I guess the programme is also appealing for “visiting professors” because we only have to lecture for one -long- afternoon and then one can claim to be a professor all year long…).

Jointly organised with the University of Liège and Saint-Louis University, this one-year programme in Competition Law and Economics and entirely taught in English covers every major aspect of European competition law and its economic issues such as joint ventures and horizontal cooperation agreements, vertical agreements and distribution networks, cartels, abuse of dominance, mergers and acquisitions, state aid, etc.  As we noted in an earlier post, the BSC is now, for very good reasons, in the top 10 for specialized competition law LLMs worldwide.

This programme targets in particular:

• Business Lawyers and Economic Consultants
• In-house Legal Counsels, Managers, Executive and Public Affairs Experts
• Civil servants
• Students who have just graduated from university (Law or Economics)

The programme offers:

• the unique privilege of seeing Alfonso Lamadrid teaching and of participating in one of his legendary simulation games;
• a comprehensive and structured teaching curriculum with periodic assessments ;
• a multidisciplinary approach, with courses in both competition law and economics taught by leading experts with deep expertise and vast practical experience in competition law from both the private and public sector ;
• Friday afternoon sessions from 12.30 to 18.00, a schedule that is fully compatible with the requirements of professional practice ;
• a student’s opportunities to socialise and meet fellow competition professionals on a regular basis;
• an ‘interuniversity certificate in competition law’, which is worth 32 credits.
• did we mention the unique opportunity of seeing Alfonso Lamadrid in action?

For more info click here.

I guess many of you are following with interest what is going on in the oil sector. It looks like the OPEC cartel does not manage to scare people anymore. And it is not for lack of trying. Due to several economic and technological developments, the OPEC’s ability to dictate oil prices is not what it used to be. Their market power, while definitely significant, has appreciably decreased. There are reasons to believe that (relatively) low oil prices are here to stay.

As a good geek, it did not take long before this piece of news got me thinking about its competition law angle. I can think of the following:

Market power should be in any definition of cartel conduct

There have been attempts to give a meaningful definition of what a cartel is, and how it is different from other horizontal agreements. It has always been clear to me that definitions that focus on the external manifestation of cartel conduct (price-fixing, market sharing and so on) are not accurate, because (1) cartel conduct may take many other forms; and (2) not all agreements that provide for price-fixing, market sharing or output restrictions are necessarily cartels.

It has also been clear to me – and the OPEC cartel’s current travails confirm this view – that cartel conduct worthy of the name only exists where the parties enjoy significant market power. There may be conduct that, on the face of it, looks like a cartel. If the market power of the parties is insignificant, however, the practice is most probably not one. In all likelihood, it is something else (Herb Hovenkamp explains all of this brilliantly in his Antitrust Enterprise, by the way).

Just in case you were wondering: the good old days of the OPEC cartel may now be gone, but it still a cartel, the object of which is certainly restrict competition. Whether, and how long, the cartel will last is a different question.

How to distinguish between by object and by effect restrictions

The degree of market power enjoyed by the parties is a useful filter not only to identify cartel conduct but to distinguish, more generally, between by object and by effect agreements. Where the market power enjoyed by the parties is not significant, the object of the practice is, in all likelihood, not the restriction of competition.

Let me take a couple of examples from prior discussions in the blog.

Buyers’ cartel vs pro-competitive joint purchasing agreement

The Commission has taken action in the past few years against cartels involving buyers of a product. And rightly so. A buyers’ cartel can be as damaging, and every bit as restrictive by object, as a cartel involving sellers. There is no reason to distinguish between the two.

The twist is that not all agreements involving buyers are restrictive by object. A joint purchasing agreement like the one at stake in Gottrup-Klim is not as such contrary to Article 101(1) TFEU. As the Court explained in that case, it may be that such arrangements ‘make way for more effective competition’, and thus fall outside Article 101(1) TFEU altogether. The Commission takes the same view in its Guidelines on horizontal co-operation agreements, where it distinguishes between buyers’ cartels and joint purchasing agreements.

How is it possible to distinguish between the two in practice? The form of the agreement does not help that much. Both a buyers’ cartel and a joint purchasing agreement take the form of price fixing (yet another example that a price-fixing agreement between competitors is not necessarily a cartel!)

The degree of market power, on the other hand, gives an idea of the object of the agreement. The lower the degree of market power enjoyed by the parties, the more credible the claim that the object is not to restrict competition, but to ‘make way for more effective competition’ instead. And vice versa: if the agreement involves all buyers of a product it is very likely that the parties seek to restrict competition.

If, for instance, the joint market share of the parties is below 15%, the parties are unlikely to have the ability to influence prices. They would be shooting themselves in the foot if they tried to raise prices. Thus, the rationale for the agreement cannot be to raise prices in a coordinated manner, but a different, pro-competitive one.

Joint bidding

I discussed joint tendering before my book-related break. A joint tender is, on its form, difficult to distinguish from a (bid-rigging) cartel. As much as a cartel, submitting a joint tender involves price-fixing between competitors. Does it make it a ‘by object’ infringement? Not always. What the Court held in Gottrup-Klim should be equally applicable in this context (I do not see any reason why it should not, anyway).

It may well be the case that a joint tender ‘makes way for more effective competition’ within the meaning of Gottrup-Klim. If the firms submitting the joint tender are relatively small, their chances of competing against larger rivals may be substantially improved if they join forces. The object of such an agreement does not seem to be (and cannot be) the restriction of competition, but the opposite. Again, market power can provide a reliable filter to identify pro-competitive and ‘by object’ infringements.

Evidence issues

The above suggests that a market power defence should be available to the parties to an agreement, in particular in cases where an authority or a claimant argues that their practice amounts to a ‘by object’ infringement. The parties can show, in other words, that there are factors pertaining to the economic and legal context that lead to the conclusion that the agreement is not caught by Article 101(1) TFEU by its very nature. That this sort of defence is available in the context of Article 101(1) TFEU was confirmed by the Court in Murphy.

There is a chance that some of you have realised that I have not been blogging in the past weeks. I have, I think, a good reason for this prolonged silence. I am about to finish a book that will come out with Cambridge University Press at some point next year. After much thinking (and some wise advice from, inter alia, Alfonso himself), it will be entitled The Shaping of EU Competition Law. And the painting you see above, by Juan Gris, is the one that I have chosen for the cover (what do you think?).

I have been revising the findings and I am at this stage where everything seems exciting . It is not only that the work is almost finished; it is also the feeling that comes from realising that the vague intuitions that I had at the beginning of the project seem to be confirmed.

So what is the book about, and what got me writing? Essentially, two ideas that I thought could be developed further:

• Institutions and substance in EU competition law

We all know, and agree, that the underlying institutional structure has influenced the substantive evolution of US antitrust. For instance, the fear of type I errors, which has an enormous influence on the shaping of the law, results from some institutional peculiarities of the system. The European model is very different. As a result, one can expect the law to develop differently (for instance, one can expect it to be far less concerned with Type I errors). This is fine and understood, but another question remains, I think, largely unanswered: how, in turn, has the institutional structure influenced the evolution of EU competition law? How, in other words, does the centrality of an institution like the Commission impact on the substantive dimension of the field?

• The need for comprehensive data

Last week at a conference, a speaker with whom I shared a panel emphasised the importance of supporting any claims with all of the case law, not only with the judgments that happen to support one’s views. I fully agree. I have come to realise, over and over, that our ideas about what the law is often change when one considers every single case. It takes time, but it is worth the effort. The problem I encountered when preparing the book is that it is difficult to find every case from a single reliable source.

The solution? A database including every Commission decision and every judgment of the EU courts. I could never have completed this database without the fundamental contribution of my amazing colleague Andriani Kalintiri. My idea is to reproduce the practices that are commonplace in other academic disciplines: with the help of CUP, I will make the data available to allow anybody to check and replicate the results of my findings.

How about the findings? Let me anticipate a couple of them:

• The intensity of judicial review

Some people like to say that the EU courts are overly or unduly deferential to the Commission. There are instances where no evidence (or only anecdotal evidence) is provided in support of this claim. Sometimes, the claim is not properly substantiated. As I explain in the book, if one intends to argue that courts are overly or unduly deferential, it is simply not enough to come up with the percentage of Commission decisions that have been quashed when challenged.

Any careful study would need consider a whole range of other factors. For instance, one has to compare like with like (e.g. a prohibition decision is not a rejection or a commitment decision). Secondly, the success of the Commission may very well be explained by risk aversion (if it appears that it only takes action where there is a clear-cut infringement, it is only reasonable to expect its decisions to be upheld, at least on substantive grounds). When one examines carefully the case law, and takes these factors into consideration, the picture that emerges is much more interesting and much more nuanced.

• Economics and EU competition law

According to conventional wisdom, the EU courts are reluctant to introduce economic analysis, which is relied upon by the Commission in its decisions and soft law instruments. I always suspected, and have argued in the past, that this depiction was far from the truth. I feel I can now properly substantiate this intuition. More often than not, economic analysis has been introduced by the EU courts, not the other way around. Moreover, economics plays a role that is often underestimated, or ignored: that of constraining, and defining the boundaries of, administrative action. In this sense, economics is seen, and has been used, by the EU courts as a valuable tool to make enforcement more predictable – and thus as a means to enhance legal certainty.

I hope to get back with more news soon!

Remember this Forbes survey concluding that associate lawyer was the unhappiest job?

You know what they say about robots taking the most “dull, dirty an dangerous” jobs?

Yeah, well….

Although, why bother making robots when some law firms have perfected the art of having untiring,  uncomplaining human machines billing-4,000-hours-a-year?   

Plus, I’m not sure it’s that easy; associates have, in turn, perfected the art of dealing with contradictory instructions and coming up with bogus excuses (having surgery? come on…) to an extent impossible to replicate by artificial intelligence…

The Economist devotes its front page and a feature this week to the question of how data affects competition and competition law. It was not my greatest concern this week, but ok [if this post, written on a Saturday morning, gets published on Monday that’s because Macron won and I have not jumped out of the window]. The newspaper -which we have often echoed on this blog- joins the chorus of those who want “changes” and “new tools” in competition law to deal with this allegedly new phenomenon. In a way, The Economist sides with economic populism on this one (we’ll explain why in a few lines from now).

You already know my views on this topic from the posts and presentations available here, here, etc, essentially summarised in this CPI contribution. Today let me address something fundamentally more important (albeit in a rush, while my kid is miraculously still asleep… )

Creating waves

Step 1. This whole debate was triggered and fuelled by some tech companies who, unlike their rivals, did not operate data intensive businesses, or certainly not to the same scale. For instance, a company whose name we don’t need to mention, appeared to share these views only a couple of years ago, but then -following its acquisition of LinkedIn-  😉 changed views and endorsed these (or at least their spokesperson redirected about 300 different media outlets to this blog, for which we are grateful). This is actually not new (a similar thing happened regarding SEPs) and I actually think it is legitimate, logical, and absolutely not reproachable for private companies to change stance according to their evolving interests. But the origins of the debate are interesting nonetheless.

Step 2. A debate that was part of a business strategy and in its own self-interest finds some well-meaning allies (EDPS and others) who are genuinely concerned about what they see as a problem and a regulatory void and are keen on having their message propelled.

Step 3. Then it’s the turn for us lawyers and conference organisers: since we have little else to talk about these days (and we like to talk, so much that some even pay to do it, a market failure well exploited by others) we make an issue out of this. The result being that the topic is everywhere (to be sure , I myself have contributed to this speaking about it at the European Parliament, ERA, the VUB, Leeds University, the IEB and others, even if to say it is a non issue). This, in turn, eventually reaches academia. And there we see interesting hypotheses and theoretical reflections, but most of which I am not sure correspond to what we actually see in the markets (and which, to the extent I know, have not offered conclusive answers as to how competition should allegedly be changed).

Step 4. The next phase consists in competition authorities showing that they listen and adapt to public debates and to seemingly changing markets, and we end up with joint reports and strange cases (see here for my comments on the German Facebook case). Only the European Commission has kept its cool, although lately there are signs of changing winds there too…

Step 5 is that part of the media -not an ally of many of these data-intensive business models and companies- echoes it and turns it into a wider issue of public policy. This is where we seem to be now. Admittedly, however, what you see in print may only be the tip of the iceberg;  one day someone should write about how the media is shaping competition law these days -both to widen is net (at least that is what other media reports, see here) and to narrow it (see here).

Step 5 is that politics (the most permeable of all, particularly these days) succumbs to the idea.

And this is how change and sausages are made.

Economic Populism?

Contrary to some, I have always accepted that data can give rise to barriers to entry, market power and that it can be used to foreclose competitors. The circumstances under which this can happen are much narrower that many now claim, but still possible, as precedents actually show. My point is nonetheless that we have the tools to deal with those problems whenever they arise. Caution is what is needed, not substantive changes [a different matter being the procedural reform of merger notification thresholds, a point we actually made here before this debate exploded]. If there is one thing that cannot be criticised if competition law is lack of flexibility. A set of wide, common sense (rule of reason) principles and rules that has been able to apply and adapt to every industry for over a century can certainly be applied to data.

To be sure, our economic and legal tools will not always yield conclusive results when applied to data (they often don’t either when it comes to price, including for market definition and others, but it looks somewhat more objective or seemingly mathematical and we are happy to play along. But when do we have conclusive results in social sciences? (Any pollsters have a view?)

And this brings us to the fundamental misconception of these debates. Whenever politicians, respected economists or the media -including the ones with whom I would generally agree-  discuss competition law, they tend to view it as one more took among those available for economic regulation to pursue legitimate goals [admittedly, competition authorities have facilitated that by using enforcement to shape markets and fill in perceived regulatory voids particularly in recent years]. But it’s not. Competition law, rather antitrust (admittedly we can leave mergers and State aid aside), is a sanctioning regime. Dettaching the discipline from its legal nature (remember?) is wrong, and is a bit populist too.

So, yes, its  correct application will (most often) naturally improve the functioning of markets and contribute to a fairer society (more on this here), and yes, enforcement discretion can be exercised to target the greatest perceived social concerns.

But in a sanctioning regime there are limitations inherent to the very rule of law. We don’t get to change the rules in the middle of the game, we don’t (should not) get to strecth the rules to impose sactions nor do (should) we intervene in the face of uncertainty and doubt. Competition law should not prohibit what it does not understand, it should not meddle with ecosystems or with the very core of business models (including those based on data) when the effects of intervention are uncertain. This, until now, was uncontroversial. It all goes back to basics: general principles of law trump or should trump expediency and effectiveness.