Archive for the ‘Uncategorized’ Category
Antoine Winckler’s Quiz
Competition law quizzes are getting popular:
The International Committee of the ABA’s Antitrust Section is apparently running an Antitrust Trivia (thanks to Vera Sopeña for the pointer!)
As a follow-up of our quizz on the history of competition law, Antonie Winckler has proposed a quizz of his own to our readers:
He remembers having read somewhere that Baldus de Ubaldis – the greatest legal thinker of the Middle Ages – considered that the law against boycotts and restraint of trade was part of natural law, and thus pre-empted postive law and was universally applicable. Anybody finding the right quote is welcome to share a beer with Antoine.
As you see, the “beer reward” is becoming a tradition here 😉
Anthem
In her great fiction Anthem, Ayn Rand describes a word where humans cannot use the word “I” on pain of being sentenced to atrocities. This is part of a greater effort of the dictatorship to suppress the concept of individuality.
To some extent, EU competition law shares analogy with Rand’s novell. It is sometimes as if Commission officials were forbidden by the EU Courts’ case-law to use the language of economics. This could be allegedly part of a larger plan to undermine the relevance of economic concepts.
An example: in 2008, a Lithuanian Court asked the Commission whether the proof that an information exchange agreement infringed Article 101 TFEU was conditional on evidence that the market structure was “oligopolistic“. In accordance with Article 15(1) of Regulation 1/2003, the Commission released its opinion.
In an ideal world, where economic reasoning would freely inform legal interpretation, the answer would be a resounding yes.
Yet, according to the Commission, the case-law of the EU Courts does not explicitly request the proof of an “oligopolistic” market structure for a finding of an unlawful information exchange agreement. Given this, and in stark contradiction with modern economic theory, the Commission denies that “oligopoly” is a necessary pre-condition for a restriction of competition to occur in a such setting. Blinded by obedience to murky judicial court-speak, the Commission thus turns its back on a basic economic concept.
This is even more suprising given that in the following paragraph, the Commission itself recognizes that the level of concentration and the structure of supply are important features in the analysis.
Very disappointing.
Strike?
No post last Thursday, Friday and Monday, what happened? Did we try a strike (not at bowling, like on the pic above) to see how a 4 days WE looks like?
Nothing of this kind really: Alfonso and I just got insanely busy. Sorry for this.
Two things nonetheless sprung to mind in the past days:
1. Old (students) habits die hard. At a conference last week, I drove the competition John Turturo mad. I was chatting with my assistants in the back of the room, essentially commenting on speeches. He was working. He did not like it. Misbehavior from me. Am truly sorry.
2. DG COMP’s webpage on cooperation with national courts contains a wealth of relevant information on Article 15(1) and 15(3) of Regulation 1, i.e. requests for information or for an opinion + amicus curiae. It is very unfortunate, however, that this webpage is not translated in EU languages other than English. I can see the point of using English as the competition esperanto in Brussels, but when it comes to national courts seeking online information on what they can do, it would help to provide translation.
Students’ Bests
My ULg students took their oral exam last week. It went fairly well for most of them.
That said, as usual during exams, I heard a bunch of puzzling things. In response to a question on alternatives to fines for competition infringements, I got the following answers:
- Dissolution of the infringing company (or the “slayer” remedy) =>think of the consequences in industry-wide cartels;
- Bringing the infringing company under Commission control (or the “bureaucratic” remedy) => science fiction or just augmented reality?
- Divulge all patents and other trade secrets to other market participants, with the particular illustration of Coca-Cola abusing a dominant position (or the “an eye for an eye” remedy) => you steal market share, we steal your IPRs.
I forgot, I also had a very candid answer when I asked what could be done to foster private enforcement =>make justice free and forbid legal professionals from making money out of cases…
PS: I am the culprit. I spent countless hours encouraging them to be creative.
Strike Party
A non competition related post.
Yesterday, Belgium was on strike (and so was lazy Alfonso, who did not post on the blog).
Guess what, this was a Monday. That is the day after Sunday, which itself is the day after Saturday.
Intriguing. I cant help but thinking that strikes are often a far cry from their purpose, i.e. genuine social protest, and in turn that they are a convenient means to make week-ends longer (or earlier).
The low turnout in the streets yesterday actually confirms this (in particular when the temperature comes close to 0°C).
I made a quick and dirty research on strikes in Belgium over 2011:
- The 4 March general strike took place on…. a Friday
- The 13 May strike in railways took place on … a Friday
I’d be interested to see a more comprehensive body of evidence, but my gut feeling is that there are many other examples.
The next question, obviously, is, how to handle this? After all, in several Member States the freedom to strike is protected by the law.
My take: maintain the freedom to strike, but prohibit 1-day strikes on Fridays and Mondays.
Our very own disclaimer
After reading the post written by Nicolas on Friday, I realized that we need a disclaimer too. Here it is:
The views reflected in our posts do not necessarily represent the views of Chilling Competition or of its authors. They merely reflect the thoughts that crossed our minds at the exact date and time that appears under each post. Those thoughts may actually be radically opposite to the ones that crossed our minds on the following second.
– If anyone feels offended or dislikes any of our posts, then we suggest that you assume that our opinion has evolved since the date of publication and that we have embraced more reasonable opinions.
– If, on the other hand, you like what we say, we recommend that you assume that since our opinions were sound, we will not have felt the need to change them.
I wish I was…
During a recent conversation with a Judge, he mentioned that he felt envious of competition agencies (we were talking about the European Commission) because they could easily behave in a “schizophrenic” way, taking one stance in one case and a completely different one in another. He argued that courts are much more concerned about respecting their own precedents (as I pointed out, there are also some nuances to this view) than competition authorities are. In my view, there is a lot of truth to this statement; competition enforcers do not feel bound by their decisional practice because the Court has endorsed the view that each case must be dealt with in light of its specific circumstances. Moreover, progressive interpretations of the law (notably with regard to unilateral behavior) show that some national competition authorities as well as the European Commission do not necessarily feel obliged to follow the case-law neither. To a certain extent, much of this could be understood, but only provided that adequate reasoning is offered to justify that the circumstances merit a change of approach. Sadly, this is not always the case (although, to be fair, the Courts are not a paradigm of transparency when they overrule their previous case-law neither). I´m sure you can think of quite a few examples of radical unexplained shifts.
This conversation made an idea spring to mind: we should ask you who or what (within the antitrust world; yeah, we know, that´s pretty limited, but..) do you wish you were?
Here are a couple of ideas to get the ball rolling:
– I wish I was one of those economists who can say “this is an economic model that we developed for this particular case“. I´m waiting for the day when I can say “this is a legal principle that we developed for this particular case“!.
– I wish I was NOT the lawyer (or rather the former lawyer, I suppose) of the Austrian company that has requested a preliminary ruling from the ECJ on whether having obtained wrong legal advice can exempt a company from responsibility…
Anyone else?
The B******t Test
As demonstrated by H.G. Frankfurt, we are surrounded by b******t.
One of the methods for spotting b******t it is the “not test“. As explained here and there, this test checks whether “it is possible to negate the statement and create a sentence that any sane person would utter in public“.
The “not test” has been applied by development economists to G20 declarations.
In concrete terms, the idea is to take a speech and turn its sentences to their opposite, i.e. turn all positive sentence to negative and vice versa. If the revised sentence makes sense and could equally be voiced by the speaker, then it enshrines worth content. If, on the other hand, the changed sentence makes no sense and would never possibly be pronounced by the speaker, then it is a vacuous statement which conveys b******t.
Now let’s see whether b******t is also pervasive in the antitrust field.
To apply the “not test“, I have chosen a policy speech of former Competition Commissionner Neelie Kroes. I apply it to bits and pieces of the speech which seem to convey opinions rather than descriptions. Instead of systematically using the “not” word, I occasionally apply antonyms.
“Together with the Court of Justice, the Commission has been an independent driving force to promote antitrust compliance to bring better products, greater choice, and lower prices to the citizens of Europe” gives => “Together with the Court of Justice, the Commission has been a biased inefficient force to promote antitrust compliance to bring better products, greater choice, and lower prices to the citizens of Europe” => b******t
“this is an impressive record, I still believe that more can be done” gives => “this is an unimpressive record, I believe that more cannot be done” => b******t
“Let me be very clear. These discussions are not about bargaining or negotiating. The Commission will not bargain about evidence or objections” gives => “Let me be very clear. These discussions are just about bargaining or negotiating. The Commission will bargain about evidence or objections” => no b******t
“We have a lot to be proud of. But as you can see, we are not resting on our laurels: our commitment to designing ever better competition policy and enforcement is as strong as it was fifty years ago” gives => “We have a lot to be ashamed of. And as you can see, we are
notresting on our laurels: our commitment to designing ever better competition policy and enforcement is as weak as ever” => definitely b******t
I leave it to our readers to draw their conclusions on this. But it seems we’d save a lot of time and paper if speeches were better drafted…
A disclaimer: this post was inspired by Alfonso’s last post + drinks yesterday with my LL.M students…
PS: I suppose only die-hard fans of AC/DC-like sound will know the LP that illustrates this post. Jackyl was a great band, and their titles are worth re-listening.
The laugh test
A prominent practitioner once explained to me the usefulness of the “laugh test” (a.k.a. “red face test”) in our profession. He said that lawyers often have to defend arguments about which they are not very confident, but that there should be a limit to the “originality” of these arguments. According to him, this limit could only be drawn with the aid of the laugh test.
The practical instructions are easy: whenever you come up with what you fear to be a far-fetched argument, ask yourself the following question: will the addressee of the argument in question have a laugh when she/he reads it? If the answer is no, you may as well give it a try. If the answer is yes, then you´re better off keeping it to yourself.
Sounds easy, right? If you´d read some decisions and submissions that I´ve been reading this week you´d realize that not everyone applies the laugh test properly!
Since I can´t talk about the examples that are currently on my desk, I will refer to a case that´s being heard today in the U.S. in which it appears legitimate to ask whether the laugh test has been applied or not.
Take a look at this piece (Price-fixing or good manners? Jury might decide) and reach your own conclusion 😉
Chillin'Competition 