Archive for the ‘Uncategorized’ Category
Show must go on
The very existence of this post is proof that yesterday’s announcement was a scam.
The idea of this post germinated a year ago. Alfonso and I were pondering about the actual impact on the blog, and how would people react if we ever shut it. We thought we should one day announce that we had a fight (we mean a real one, after a heavy night out), and that the blog would close. For a whole bunch of reasons, we eventually never published this post.
Yesterday, it crossed my mind that the time was ripe for a post like this.
First, we had been silent for 5 days.
Second, we posted nothing on 1 April.
Third, and more importantly, my professional life lies at a juncture. I have taken way too many commitments in recent years, and I need to address a huge input>output situation. I have discussed the issue at length with friends, and I came to the conclusion that I have to scrap various things in my activities. The blog belongs to the list of activities, but for some reason, I keep on thinking that we should continue. This natural experiment just confirmed it, thereby leaving open the issue of how to calibrate an effective structural remedy (GCLC, my courses in Lille, BSC, etc.?).
Fourth, on Tuesday this blog was eventually accepted on Adwords publishing platform. With this, our incentives have changed :). We must now make sure that our posts generate a sizeable amount of traffic (how could we otherwise finance the chillincompetition conference?). And with more than 1000 visits and 17 comments, this post shows that we are up to the challenge. BTW: our decision to run ads has nothing to do with the somewhat weird, and coincidental Almunia ukaz on the very same day (or with other coincidental reasons).
Finally, whilst the mud throwers have been quite vocal on this blog in past months, the silent army of readers friends only occasionally gives feedback. With this post, we received many nice messages and comments from sad readers (in particular within the Spanish readership). In fact, I’d never have thought that there would be so many reactions. And the post has revealed a number of interesting things:
- Alfonso has a big fan, who will soon be invited for a free lunch;
- A complaint before DG COMP is apparently under way, with allegations that we abusively refuse to supply;
- Competition is one click away, and we now have a new competitor (http://chilledcompetition.wordpress.com);
- We are discussed daily at the university of Chicago, wow!;
- Bengoshi was the first to suspect a joke (he also gets a free lunch);
- M-Lex and Competition 360 have made no annoucement about our fake separation. We still need to get bigger !
Please note that the decision to publish this post was mine, and mine only. In no way, this reflects the opinions of my learned co-blogger and Friend Alfonso (who nonetheless suggested the title of this post).
To conclude, thanks to the very many of you who read us, and who will keep doing so.
Why we kept silent in the past days
Alfonso and I decided to part ways.
There will be no more posts on this blog.
He may explain why if he so wishes, but I just don’t feel like it.
Thanks for your support in the past years.
Legal films and series
Many of you are aware about our taste for antitrust videos. In previous posts we commented on “The Informant” and on the OFT’s own production, we awarded Chilling Competition’s Antitrust Oscars, and we brought to you the wonderful classic”The Raid“. Many of those posts rank high in our list of most visited posts, so there are reasons to believe that you share our “geek” taste for these movies.
Our “Friday Slot” guests also seem to be fans of legal movies. In the interviews published so far some of them have confessed that legal movies rank among their favorites [e.g. “12 Angry Men” (Eric Gippini Fournier); “12 Angry Men”, “Philadelphia” and “The Verdict” (Johan Ysewyn), or “To Kill a Mockingbird” (Maurits Dolmans)].
The American Bar Association has a list of the 25 Greatest Legal Movies of all times [headed by “To Kill a Mockingbird” and “12 Angry Men”, which reveals that Maurits’, Eric’s and Johan’s taste for movies is not as original as their legal constructions 😉 ] Other websites have posted lists of the top-15 film/TV lawyers in history. The image that oursiders sometimes have from our job is often dictated by these movies and these characters. Whether or not they portray reality is generally a contentious issue. I went to Harvard Law School thinking that it would be like in “Legally Blonde” (I even died my hair and let it grow…here is the evidence), but it actually was closer to the scary “The Paper Chase“. Actually, it didn’t ressemble any of them. But it didn’t ressemble “The Social Network”s constant drunk partying neither..
Nowadays the good stuff has moved from the big screens to the TV. There’s a surprising number of “legal” TV series (see here for a list). Not having ever watched most of them, I have to confess that I’ve a clear favorite: The Good Wife. For the past couple of months watching an episode (sometimes a couple, sometimes even one or two more…) has been a late-night vice routine. I know for a fact that other competiton lawyers are going through the same problem right now with this series. I even know someone in the US who called in sick the day the last season was released in DVD and watched the whole thing in one day. Maybe that was a bit too much, but you really should watch it. I’m now done with all available episosed and opened to suggestions for a new series. Anyone?
Antitrust Hotch Potch
The title of this post is not to pay tribute to my former blog.
And it safely assumes that my former co-blogger will not sue us for unfair free-riding, or for some weird trademark infringement.
A hotch potch of antitrust-related ruminations:
- It struck me today as a little counter-intuitive that the upper Court of Justice (“CJ”) benefits from the advice of an Advocate General (“AG”) in all competition cases, whilst the General Court (“GC”) which hears more cases – and which reviews the whole of the case (facts + law) – does not enjoy the same luxury of perspectives. I know all too well that the GC may appoint an AG occasionally. But I have never heard that the GC availed itself of this opportunity in a competition case. I also know that AGs’ opinions focus primarily on points of law. But the GC also deals with issues of law. This situation is even more more surprising considering that before 1989, competition cases were handled by the Court of Justice in first instance, with the systematic assistance of an AG. A possible explanation for the degrading quality of first instance judgments in competition cases?
- Talking of AGs’ opinions, AG Mazak’s opinion on AstraZeneca’s appeal to the CJ is out. In short, AG Mazak advises the Court to dismiss all appeals.
- Talking of pharmaceuticals, I feel I have to
self-promotewrite a line on a short, and modest text I wrote for the 1st edition of the Life Sciences College in March (see link below). This text deals with recent antitrust developments in the pharmaceutical industry. It has been published nowhere, and I just do not know what to do with it (expand, publish, update, trash?). If anyone has a clue, please drop a line.
Speech – A quick look into the past, present and future of AT enforcement in Pharma – (22 03 12) NP
User’s Guide
The naysayers pretend that this blog is for “self-promotion“.
Last WE, we received again a comment by “Someone” (or is this Raymond again?) who bashed us for our lack of objectivity, our allegedly one-sided editorial line, and other things that I cannot even recall.
Since we do not publish rubbish, especially when anonymous, we decided to trash the comment.
Now, a few reminders are in order:
- The reading of this blog is not compulsory. Escaping Chillin’Competition is just “one click away“;
- There are no barriers to entry on this market. A blog costs nothing to set up. Those who may be willing to contradict us can freely do so;
- We do not self promote, and certainly not Alfonso (did you read yesterday’s love declaration?). Our Friday slot series and the Economist corner bring ample proof of this;
- If I am the one to self-promote, it is because I am a fairly anonymous guy: I have a twin brother, and I have two very famous homonyms (see here and here).
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 
