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The Friday Slot (10): Herbert Hovenkamp
As we announced a couple of daus ago, today’s Friday Slot festures an interview with Herbert Hovenkamp. We also said in our previous post that, even though we have never met Professor Hovenkamp in person, there are very few people who have taught us more about antitrust law. His works (cited in this 17-page CV) exude an all too rare lucidity. When he was awarded the John Sherman Prize by the US Department of Justice, Thomas Barnett said that “Professor Hovenkamp sets the standard for antitrust scholarship today”. We agree. If you ask us, Professor Hovenkamp is not only the co-author of the best book in the history of antitrust law, but he’s also the author of a few more of the works that would feature in our top-10. That’s why we were thrilled to receive an email in our inbox from him (signed as “Herb”) accepting our invitation to take part in The Fridat Slot only a few minutes after we contacted him.
We are immensely grateful to Professor Hovenkamp for having accepted our invitation, for all that his work has taught us and will continue to teach us, and for his enormous contribution to making antitrust law a more sensible discipline. We leave you with him now.
“Oscar” of the best antitrust law book? Non-antitrust book?
Best Antitrust Book: Oliver E. Williamson, Markets and Hierarchies: Analysis and Antitrust Implications (1975).
Best non-antitrust book: Louis Menand, The Metaphysical Club: A Story of Ideas in America (2001)
“Oscar” of the best case-law development in the past year? “Oscar” of the worst case-law development?
Best: Mayo Clinic v. Prometheus Laboratories, 132 S.Ct. 1289 (2012)
Worst: FTC v. Phoebe Putney Health System, Inc., 663 F.3d 1369 (11th Cir. 2011).
Let’s do it like economists => assume that you could change 3 rules, principles, judgments, institutions in the current EU antitrust system. What would you do?
Answer: I would speak only to the United States system, where I would change the following three things:
A. The per se rule against tying arrangements (insofar as it still exists)
B. The strict recoupment requirement in predatory pricing cases when prices are clearly below average variable cost
C. The federal courts’ repeated refusal to see the competitive harm in reverse payment settlements in pharmaceutical infringement cases
Average working time/week?
According to my family, way too much.
Why do you work in antitrust law? How did you first get into it?
A very good and inspiring teacher in law school, Lino Graglia of the University of Texas
Most interesting, intense or funny moment of your career?
The first time I sent a manuscript to my sadly departed and at the time very senior co-author, Phillip E. Areeda, in 1985. It was intense although not necessarily funny.
Your role model (if any) in the antitrust community?
What do you like the least about your job?
Grading exams
What do you like the most about your job?
The classroom, particularly my antitrust, torts and innovation and competition policy classes.
What do you like the most about economics in antitrust law?
Its ability to separate rational from irrational conduct (at least in many cases)
What you like the least about economics in antitrust law?
Its tendency to become overly technical and thus beyond the reach of the people who are most central to antitrust decision making.
What career/personal achievement are you most proud of?
Completion of the Antitrust Law treatise after Phillip E. Areeda’s death in 1995, and also the recent completion of my book Creation Without Restraint: Promoting Liberty and Rivalry in Innovation (with Christina Bohannan) (Oxford, 2012)
A piece of “counterfactual” analysis: what would you do if you weren’t in your current position?
I would be either a Dutch Reformed clergyman or a Professor of American History
Besides being a “antitrust geek” (sorry for this one, but we all are), what are your hobbies?
Raising children and dogs, and traveling
Favorite movies?
Sappy chickflicks: The Notebook, Sleepless in Seattle, Titanic
Favorite music style in general?
1980s and 1990s rock and progressive country
Your favorite place in the world?
Paris
Your favorite motto?
« Just Do It » [apologies to Nike]
Websites that you visit the most (besides Chillin’Competition)?
–RealClearPolitics.com
–Slate.com
–eBay.com
A piece of advice for junior antitrust professionals?
For young antitrust academics: don’t get too hung up on ideology.
Change of tone
Today’s edition of The New York Times features an interesting piece on the “change of tone” that migh have taken place at DG Comp with regard to antitrust intervention in high-tech industries. It argues that the Commission is now favouring effective and timely solutions instead of the time-consuming proceedings and the headline grabbing large fines that characterized “Steely Neelie’s” era (their expression, not ours!) The article attributes this change to the lessons learned throught the Microsoft case as well as to the appointment of Joaquín Almunia as Competition Commissioner.
Very importantly, The New York Times once again quotes a certain Professor Petit, from the University of Liège 😉
The piece does not make any mention to the change of key people at DG COMP’s Unit in charge of IT, Internet and Consumer Electronics. Per Hellström -who was until now its Head of Unit- is leaving for the merger unit dealing with energy and utilities. Its successor will be facing a huge workload and quite a few challenges, many of them in the form complaints, which these days are growing like mushrooms in the IT sector. If our information is correct, the Commission will be appointing an excellent new Head of Unit (sorry, but this time we can’t give you the Chillin´leak…yet).
One of the hottest potatoes on the desk of the new Head of Unit will be to deal with the many IP-related complaints and ongoing investigations. This will be precisely the topic of an interesting lunch talk held today by Concurrences, Arnold&Porter and CRA, that I will be attending in a few hours (will have already attended by the time this post is published).
This is not the sole social competition law event of the day. Nicolas and I have also been very kindly invited to attend the gala dinner for the EU Business Summit. The downside (apart from the fact that given the presence of the Royal Family we’ll have to shave) is that I´ll be missing the Real Madrid-Bayern match (any email informing on the evolution of the match will be greatly appreciated!). And this leads us to the final piece of info of today’s post:
Bayern Munich appears to be fighting Spanish clubs not only in the pitch. DG Comp confirmed yesterday that, pursuant to a complaint lodged by German clubs, it is now investigating whether Spain is granting unlawful State aids to a number of clubs. Two years ago we already said that there was a risk that this could happen. We’ll keep you posted on this too.
Recent Article 102 TFEU Case-law
Today, my ex-Howrey colleagues invited me to give a presentation on recent developments on EU competition law at Shearman & Sterling. I was very honoured.
It gave me the opportunity to read the recent judgments in Telefónica v Commission, Post Danmark and Tomra v Commission.
On my own arbitrary scale, the ranking of those judgments is as follows:
- CJEU, Post Danmark, C-209/10
- CJEU, Tomra v Commission, C 549/10 P
- GC, Telefónica v Commission, T-336/07
A word of explanation is in order: amongst those three judgments, the Grand Chamber of the Court should first be praised for its ruling in Post Danmark. The judgment dissipates the uncertainty generated by Compagnie Maritime Belge in clarifying that selective price cuts are presumably legal when prices > average incremental costs. But this is not all. The Court makes very explicit – and this is right in my opinion – that dominant firms can compete on the merits even if this forces rivals off the market (§22). In so doing, it recognises that not all foreclosure is unlawful, but only that “anticompetitive foreclosure” matters under Article 102 TFEU. Last, but not least, the judgment upholds the unnamed “Article 102(3) TFEU defense” that the Commission had plugged in §30 of its Guidance Paper (see §42).
The second judgment on my podium is Tomra. It comes second because the dicta that dominant firms should be able to compete on the merits for the entire market is wholly unfortunate (§42). It is first non-sensical from an economic standpoint. But as we wrote here, it is also inconsistent with the approach followed in other areas of competition law . A similar comment applies to the unconvincing assertion that a “suction effect” can be established without any need to run a price-cost analysis (§79). Not all in Tomra is bad though. In particular, the judgment encapsulates a subtle message of hope at §81 when it implies, a contrario, that the Guidance paper will have increased relevance in future Article 102 TFEU cases:
“As the Advocate General observes in point 37 of his Opinion, the Guidance, published in 2009, has no relevance to the legal assessment of a decision, such as the contested decision, which was adopted in 2006”
The worst of those three judgment is, by far and large, Telefónica v Commission. In this judgment, the General Court obediently implements the perplexing standards set by the Court in Konkurrensverket v TeliaSonera Sverige AB (C-52/09). To me, it is beyond common sense, conventional wisdom, reason, logic, honesty, intellectual sanity to consider that a dominant firm can abusively squeeze its rivals through high prices, meanwhile being under no duty to deal with them (see §180). In the language of driving metaphors (I love them), this is akin to forbidding someone from driving at 130 km/h, meanwhile explicitly entitling him to drive at 200 km/h.
I should, however, be very grateful to the Court. The release of those rulings comes at a perfect time, with our Brussels School of Competition conference on “Costs in EU competition law” scheduled on 9 May. The number of participants keeps increasing, and yesterday, the General Counsel of one of the 3 firms involved in those cases registered :).
Man Proc, Confidentiality and Red Little Riding Hood
In preparation for my lecture at the Brussels School of Competition last week I read a couple of Commission documents that I had not had a chance to look at: the Manual on Procedure and the recent Guidance on Confidentiality Claims. For very different reasons both of them are commendable.
– The Manual of Procedure is much more comprehensive than what I think most of us had expected (even if the non-confidential version -which has 277 pages- appears to be half as long as the original one, which according to the Ombudsman was “roughly 500 pages”). John Temple Lang deserves to be congratulated for having managed to have the European Commission make its Manual public, but the Commission also deserves to be thanked for having favored transparency when drafting the publicly available version.
The only thing I find missing in the public version is a summary description of the content that has not been included in the Manual because of confidentiality concerns. It would have been nice if the Commission had followed the instructions set out in its own guidance on confidentiality claims which state that “[f]rom the non-confidential version it has to be clear where information has been deleted“.
– The Guidance on Confidentiality Claims was not a promising document. There can be little of promise in a document whose subject-matter is the most boring thing a lawyer can do (I must confess that I started reading the doc very late at night on Thursday and was very tempted to skip it). But against all odds, the Guidance makes a fun skim read. Yep, I´m serious. Whoever wrote it has done a terrific job. The main characters of the Guidance are Red Little Riding Hood, her Grandma, Big Bad Wolf, Mr. Charming, Snow White, Ms. Magic Mirror, Wicked Step Mother, Mr. Humpty Dumpty, the Little Mermaid, the three little pigs and others. 😉
P.S. By the way, on the procedural front the Commission has in recent times issued not only the Manual, but also a comprehensive set of Best Practices and a new Hearing Officer’s mandate. Query: are any of these moves aimed at preempting a possible challenge to the current procedural framework before the European Court of Human Rights once the EU joins the Convention?
Professional moves
Lately, several good friends of Chillin’Competition have made interesting career moves. A brief recap:
- Scott McInnes (Jones Day and She Goes Electro) is moving to Mastercard. BTW, Alfonso, here’s a present suggestion for Ms. Lamadrid who recently got her driving licence: Scott sells a very nice car at a very competitive price;
- Ief Daems (ex Howrey/Shearman & Sterling) has moved to Samsung;
- Laura Zadunayski (former student of the ULg LL.M in Competition and IP law) leaves Johnson & Johnson for
booseDiageo (this one is very bad); - Tarik Hennen (Squire Sanders Brussels and GCLC) leaves the bar and is poised to reappear in a wholly unrelated market;
- Guillaume Taillandier has left Squire Sanders Brussels for a in-house position at Bemis – a flexible packaging company with its European HQ in Belgium;
- The new Richard Whish, Christopher Townley (King’s College London) has been awarded the title of Senior Lecturer with effect from 1 September 2012
- Alfonso ………….. stays at Garrigues.
- I stay full time in my good old Belgian university…
Congrats’ to all of them!
Chillin’ Competition goes running
We’ve returned from our holidays with recharged batteries and with plenty of new ambitious and perhaps unfeasible projects that we’ll be disclosing here in due course.
One of our blog-related aims for the coming months is to boost one of the most characteristic market failures in legal markets: not to much competition, but rather too many competititons.
We observe with interest that in our little antitrust world there are almost more prizes, awards and rankings as there are antitrust law specialists. To be sure, we’ve also contributed to this by creating the Worst-Antitrust development Prize and our Antitrust Oscars, but there are many more: just think of Concurrence’s new Writing Awards, of the Jacques Lassier Prize; of the many law firm directories ranking firms and lawyers such as Chambers, The Legal 500, Best Lawyers, IFLR, Global Competition Review’s Annual Awards, or in GCR’s well-known and recently-published 40 under 40 – by the way, don’t you also get the impression that some people must have lied about their age? 😉 -.
The problem with some of these sometimes pricey prizes is that they are inherently subjective. Whereas most of us admit that absolute neutrality and objectivity are unrealistic aspirations (a dozen recent complainants before the European Commission seem to think differently), some things in life can still be measured objectively. That’s why we at Chillin’ Competition have decided to create the first objective legal competition: we’re creating the “Fastest Antitrust Expert” Award.
The news of the Spanish professor who got sued because of an antitrust-related story that he wrote on his blog led us to question our way or life. “Should we run marathons instead of blogs“, we thought. This profound thought led both Nicolas and myself to register to run the Brussels 20 k on May 27th.
In the context of a mutually encouraging exchange of emails (which in essence consisted of Nicolas saying that my two previous running times reveal that I’m slow and of me responding that he’s short-legged) we came up with the idea of opening our challenge to all readers of this blog. These are the rules:
- The “Fastest Antitrust Expert” Award is open to all readers of Chilling Competition: public officials, lawyers, academics, students and, basically, to anyone who has registered for the 20k and who registers on the blog.
- Registering yourself with us is easy: you can either send us an email or write your name in a comment to this post; you must however do that before 1 May.
- On 2 May we will publish the list of names of those of our readers who are taking part in the 20k;
- In the weeks before the race we will be organizing some more stuff open to all participants (I have in mind something like Nicolas cooking pasta for everyone the night before the race…).
- The Prize: the winner will get an special interview at “The Friday Slot” as well as a pair of Li-ning running shoes.
Veggie OD
Sorry, can’t help it.
It is now the Commission that puts food on the table.
Yesterday, the Commission announced a 169,000,000€ fine in the Freight Forwarders cartel.
On this occasion, it announced that some cartel participants had organised their contacts in a so-called “Gardening Club” and that they had used coded language based on names of vegetables – such as “asparagus” and “baby courgettes” – when talking about fixing prices…
Thanks again to Aoife White for the pointer
Beyond Endives
As most readers know, Alfonso has been gung ho about endives.
On pain of breaking the anti-food fatwa enunciated yesterday by my learned co-blogger, I must report today the ultimate case in this series of post.
Earlier in the month, the Belgian competition prosecutor issued the equivalent of a SO in a case concerning a “salad” of unlawful exchanges of information. Please tighten your seatbelt. The practices under investigation cover:
- Candies, including possibly chocolate;
- Ice-cream;
- Sauces (BBQ season is coming);
- Veggie and other stocks;
- Pet food…
Clearly, the scope of this investigation goes beyond anything reported earlier on this blog.
Thanks to Aoife White (Bloomberg) for the pointer.
One last thing: given my co-blogger’s obsessive focus on food, I suggest that, for our next quizz, chief Alfonso cooks an antitrust dinner to the winner, where endives will be served with flour and BBQ sauce.
White Russian
Photographed yesterday, in Moscow’s metro. I know, I am a real antitrust geek…
Now, more seriously, I am spending the week in white Russia – it has been heavily snowing here – where I teach a course on competition law at MGIMO university. This is the third year I do this. Again, it is a very pleasant experience. I am very impressed by the level of the students.
Teaching EU competition law outside Europe requires some adaptations, in particular when it comes to give examples. I thus did my homework to get acquainted with the names of (i) national telco incumbent and of the big supermarket chains; (ii) the basic structure of Russian competition law; (iii) the Customs Union between Belarus, Kazakhstan, and Russia.
A final thing. I made a presentation at Deloitte and Touche Moscow yesterday on recent developments in EU competition law (see link to the ppt below). It is a rather basic presentation. I have to make a similar presentation in several law firms in Brussels in the upcoming months, but I intend to sophisticate it a little. If you have any comment/input/remarks that may help, please write to me.
Recent Developments in EU Competition Law – Deloitte (21 03 12) NP
PS: to avoid any misunderstanding, the title of this post is in relation to The Dude’s favorite drink…
Presidential Endives
Endives have been a highlight of this blog.
They have become a presidential topic.
Last week, in a large-audience TV programme, N. Sarkozy discussed – and actually lambasted – the decision of the French competition authority (FCA). This comment was in reaction to a question by a woman in the audience, who complained that the FCA decision prevented agricultural producers to coordinate selling prices.
Here’s N. Sarkozy’s answer (quick and dirty translation):
The FCA “went a little to far … I would like agricultural producers to be able to sell at prices above production costs … hence one must define, with other production groups, what is an average production price … and the competition authorities must not consider this average production price as a restriction of competition“.
In clear, the price of veggies should be defined collectively amongst producers at a level > costs, and the competition watchdogs should not challenge this.
But there comes my preferred part. To conclude N. Sarkozy added, referring to the FCA officials:
“They must have the intelligence of understanding that were are not talking about Microsoft and Apple“.
Check the video above or here between 2:00:45′ and 2:01:57′.
Chillin'Competition 