Archive for the ‘Uncategorized’ Category
Upcoming competition law seminars in Madrid
The level of the Annual EU and Spanish Competition Law course directed by Luis Ortiz in Madrid keeps getting better each year (and it´s now on its 14th edition..). It really is hard to find a program with so many excellent speakers participating on it. Let me give you an example:
The seminar which took place last week was coordinated by Cecilio Madero (Director General at DG COMP), and focused on novelties in the areas of mergers and abusive conduct. Amongst the speakers were Per Helmström (Head of Unit at DG COMP), Nicholas Banasevic (Deputy Head of Unit), Milan Kristof (Référendaire at the ECJ), Ainhoa Veiga (Partner, Araoz y Rueda), Antonio Guerra (Counsel, Uría Menéndez), Juan Jiménez-Laiglesia (Partner, DLA Piper) and Miguel Odriozola (Partner, Clifford Chance).
Yesterday and today another bunch of top-notch speakers such as José Luis Buendía (Partner, Garrigues), Piet Jan Slot (Professor, Leiden University), Jerónimo Maillo (San Pablo CEU University), Carlos Urraca (Legal Service, European Commission), Joaquín Fernández (Head of Unit, DG COMP) or Jorge Piernas (EUI), amongst others, have been dealing with state aids and other public interventions.
Here comes the advertising: If you´re sorry you missed those, and fancy the idea of spending a spring weekend in Madrid you can still register for the last two seminars:
– On the 18th of March I will be coordinating a seminar on the application of competition law to network industries. It will feature:
Jarleth Burke (Partner at Jones Day, London) who will be speaking about the regulation and competition law in the telecoms sector;
Júlia Samsó (Latham&Watkins, London), who will deal with the specificities of the energy sector;
Jasper Sluijs (Tilburg Law and Economics Centre), an expert on network neutrality issues;
Myself, for an overview of the challenges posed by network effects and network industries.
– On the 25th of March there will be another seminar on IP and Competition law coordinated by Alvaro Ramos (Senior corporate counsel at Cisco). Its three sessions will deal with
“Excessive pricing and copyrights” with Daniel Escoda (Telefónica), and Pablo Hernández (SGAE);
“Standards and Competition Law” with Jennifer Vasta (Senior Legal Counsel, Qualcomm); Miguel Rato (Partner, Shearman&Sterling) and Álvaro Ramos;
“Competition Law in Cloud Computing“, with Jean Yves Art (General Counsel EMEA Microsoft), Tero Louko (Antitrust Counsel, Google), and Luis Ortiz Blanco (Partner, Garrigues).
There are very few seats left, but if anyone´s interested in registering (half prize for those coming outside of Spain) or obtaining more info, you can write here competencia@ieb.es
Conflicting views on the Google/ITA Software deal
Last week I mentioned here the White Paper issued by the American Antitrust Institute on Google´s proposed acquisition of ITA Software. As you will recall, the AAI concluded that the deal would give rise to competitive concerns that made antitrust intervention necessary. As practically all Google-related debates, this one is fast getting huge, and extremely interesting.
On the one hand, the anti-Google “Fair Search” coalition has created a web page stating all the reasons why the deal would harm consumers in every conceivable way. You may or may not agree with it, but one must admit that they´re doing a pretty good job in speading their message around (this is a consequence of what I meant when I said here that Google has tough and very powerful competitors, who have the incentives and the means to present a fierce battle in as many fronts as possible).
We´ve given you the link to the AAI´s White Paper and to the Fair Search web page, both of which favor close scrutiny of this transaction. The picture would not be complete if we didn´t direct you to some of the arguments explaining why the acquisition of ITA by Google would actually be procompetitive. Daniel Crane, a Professor at Michigan Law School, has just written a guest post on the blog Techcrunch.com in which he does that exactly; he also sends a very clear message: “Let´s calm down on the Google-ITA deal” (thanks go to George Pedakakis for pointing us to it).
Crane´s main point is that “Google’s competitors naturally fear Google’s emergence as a formidable rival in travel search, but that is hardly a reason to block the transaction. Indeed, it’s a reason to approve the deal. The most likely scenario is that Google’s acquisition of ITA would allow Google a quick and efficient entry point into travel search that would expand consumer options and increase rather than decrease competition“. His post also responds to the main allegations put forward by those opposing the deal.
Now that you´ve a complete picture of the main positions in this debate we´d be happy to know about any thoughts our readers may have on this matter. Anyone?
Unrelated: We are also reporting more and important moves in the Brussels legal market: a bunch of great associates have also left Howrey to join Shearman&Sterling. Amongst them are some of the brightest young lawyers around (some of whom are also very good friends of ours), such as Mark English, Elvira Aliende, Louise Rabeux, or Marixenia Davilla.
And a chillin´leak: Julian Joshua is apparently headed to Steptoe & Johnson
It´s shocking to see how what until very recently was a top-notch practice at Howrey´s has disintegrated so quickly. Looking at the positive side: there will be more empty tables at L´arte di, which is were we constantly ran into each other at lunchtime..
Next BSC Module
In the forthcoming weeks, the Brussels School of Competition (“BSC”) will host a series of three weekly lectures on “The Procedural and Institutional Framework of EU Competition Enforcement”
Our speakers are Fernando Castillo de la Torre (Legal Service, European Commission) and our friend Luis Ortiz Blanco (also Alfonso’s boss ).
We still have a few seats free. See registration form and details below.
Important for Alfonso’s growing fan-club: our co-blogger will most likely make a “not to be missed” guest appearance at the BSC.
Mercato
Some time ago, we have been informed of a forthcoming large, big, huge move on the Brussels legal market.
The story is now official:
Our friends Trevor Soames, Miguel Rato, Stephen Mavroghenis, Götz Drauz and Geert Goeteyn are joining Shearman and Sterling as partners.
They take with them a bunch of top notch associates (we’ll report on that in the next days).
Best of luck to all of them at S&S.
Nicolas/Alfonso
Google News
Things are developing on the Google front, and for some reason the timing of the most significant developments is practically coincidental:
The complainants in the EU investigation on Google are as active as we had forecasted. A supplementary complaint has just been lodged before the European Commission by the French company 1plusV, which controls ejustice.fr, one of the original complainants. More on the content of the complaint here.
Almost in parallel, the Texas Attorney General disclosed on Tuesday some details on the information that it requested from Google a year ago concerning the operation of its search algorithm (see here ).
The new complaint and those revelations come at at moment of growing rumors on the likelihood of an early settlement. Apparently there have been a number of preliminary talks (including a meeting between Eric Schmidt and Commissioner Almunia), although the Commission has made clear that the investigation is ongoing. An offer of commitments on the part of Google seems to be the most sensible solution from Google´s standpoint it it wants to avoid entering into a never-ending legal battle with the Commission. In fact, Google´s CEO has been reported to be thinking along these lines (see here). As we´ve said before, I very much doubt that complainants and other of Google´s competitors would be satisfied; I bet that the case will be taken to Luxembourg no matter what, but given the Commission´s litigation record in art. 102 cases (and ultimately the Alrosa litigation) there´s no doubt Google would rather have the institution on its side.
Unrelated to the EU investigation, but also of interest is the fact that the American Antitrust Institute has published a white paper arguing that the DOJ should seriously consider challenging Google´s acquisition of ITA Software. It strikes me that the AAI, whose members should probably have very divergent views, has taken such a defined institutional position on this particular deal, but the paper makes an interesting read anyhow.
PS. Once again, all the info above has been found through Google News.
Much Ado about Nothing
Some topics exercize a somewhat irrational fascination on competition lawyers and should not.
Take, for instance, “hub and spoke agreements“. Lately, this topic has been amongst the trendiest issues in competition law circles.
However, those are just ordinary vertical agreements with horizontal anticompetitive effects (read collusion). Conceptually, they should be dealt with along the lines of multi-agency contracts, english clauses, single branding agreements and so on.
Viewing hub and spoke agreements as a novel kind of agreements is purely formalistic reasoning.
The bottom-line: I will fight any proposal to organise an event on hub and spoke agreements :).
100,000 visits!
We crossed the 100,000 threshold yesterday!
I seize this opportunity to recap. several notable evolutions that have taken place on this blog lately:
- Since Alfonso came back, we have now between 375 and 500 visits a day;
- Readers increasingly post comments on chillin’competition. We are nowhere as compared to other megablogs, but the trend is encouraging;
- We have reorganized the “categories” section on the right of the blog;
- We have opened the blog to external contributors (Pablo Ibanez, Philipp Werner, Napoleon Ruiz);
- We got a first hand on several big news and we leaked them :);
Thanks to all our readers for the support. Alfonso and I are going out for drinks this week.
Recent publications
In the past few days there have been several publications on which we hadn´t had the chance to comment:
Some days ago the European Commission published a document stating its position regarding the nowadays common claims on inability to pay made by undertakings on which a fine has been imposed. Interestingly, the document was published on a Commission´s site on transparency, but not on DG Comp´s website.
Last week, DG COMP also launched the public consultation on collective redress (thanks to P. Sabbadini for immediately pointing us to this).
On the European Courts side (and aside from an arguably insufficient but nevertheless welcome fine reduction that some colleages of mine got in the Spanish raw tobacco case), Advocate General Kokott issued a very important Opinion in the Greek decoders case (the one concerning Karen Murphy, the owner of the Red White & Blue pub in Portsmouth, who cancelled her licence with BSkyB -who holds the right to broadcast live Premier League games in the UK-, and instead signed up with a Greek provider and imported its decoders). The matter eventually arrived at the ECJ by way of a reference for a preliminary ruling. In her Opinion, AG Kokott considers that “territorial exclusivity agreements relating to the transmission of football matches are contrary to EU law“. Were the Court to follow its Advocate General, its Judgment would constitute a revolution that would shock the world of sports in a way only comparable to the Bosman Judgment, not to mention its potential implications for the cinema and TV industries in general. We´ll post a comment on the Opinion here as part of our “Competition Law & Sport” series as soon as we get the time to read it and think it through.
And speaking of publications, there´s a new journal which might be of interest to many of us: the Journal of Universal Rejection They will reject absolutely everything submitted to them 🙂
Antitrust Oscars
The significant rise in visits experienced by the blog in the past week (we had close to 3000 visits) has opened our eyes to a reality: there´s a lot of people with free time out there! That’s why, considering that nominations for the oscars were made public last week, determined to fill your spare time with entertainment, and in the spirit of that weird phrase that appears on our header¨”Relaxing whilst doing Competition Law is not an oxymoron“, we´ve put together for you a list of nominees for the best antitrust-related videos on youtube. All of them are really worth watching (although you know that THE RAID is clearly our favorite..)
Suggestions for additional nominations and/or categories are accepted. Vote for your favorite!
Best film by a competition authority
Leniency in cartel cases, by the Dutch Competition Authority.
Be the first to tell; a film on leniency, by the Swedish Competition Authority.
Best antitrust lawyer starred videos
ABA Antitrust Section kicks off year 2010/2011
Best competition law book review
Great video-reviews of the EC Competition Law Handbook 08/09 and of EC Merger Control. Really worth watching; I keep telling Nicolas that this is how he should do his reviews..) They are full of highlights.
Best non-fiction films
The lysine cartel : The real story on which the movie The Informant was based (my favourite scenes are on minutes 1.44 and 2.46). For an interview with the real Mark Whitacre see here
Bill Gates´deposition before the DOJ in the Microsoft trial. In youtube you can find the whole series (for season 1 see here), and also a compilation of greatest hits (the videos give, I think, an unfair portrayal of him so, to balance things here is his great commencement speech at Harvard). Btw, Microsoft´s Steve Ballmer has also starred a short film which escapes any definition
Best politician starred video
Chuck Norris´ Neelie Kroes´ statement (some of the best lines in the history of competition movies) after fining Intel 1 billion euros: “Intel´s latest advertising campaign proposes Intel as the sponsors of tomorrow; well, now they are the sponsors of the European tax payer” and “My vision of tomorrow for Intel, here and now; obey the law“.
The Lisbon Treaty and Competition Policy: A Story of Two Views, by Nicolas Sarkozy and Tony Blair (from 0.40 onwards).
Best non-English speaking video
Apparently (¿?) this video deals with leniency
Best educational video “for dummies”
What is a cartel? (Unfortunately we could not nominate it for the category on best special effects)
¿Por qué la competencia importa?
Best critical video on antitrust
Don´t trust antitrust: the incredible bread machine (watch from minute 2 onwards).
An extra
A video not on competition law, but on competition in law (on 0.37 law school is compared to a situation where “you take a group of alcoholics and then open the bar for three years”, and law students are defined as “insecure, grade obsessed, status obsessed people). It also features Elizabeth Warren, one of the best professors I´ve ever seen in a classroom.
Zombie Law?
Remember §3 of the Guidance Communication on exclusionary abuses under Article 102 TFEU (“This document is not intended to constitute a statement of the law”)?
For a while now, I had been fearing that the Communication was a born dead document.
In reading last week the GC’s ruling in Tomra v. Commission, I got even more troubled. Would the Guidance Communication be the first “zombie” legal instrument ever released by the Commission? A zombie legal instrument is a document that is dead (i.e. overruled), but that does not know it’s dead (i.e. still presented as the law as it stands). For more on zombies in the field of economics, see here.
Clearly, there are a slew of killing statements in the GC’s judgment. Look closely:
- §206 suggests – at least implicitly – that consumer harm is one of the several goals pursued by Article 102 TFEU in parallel to the protection of competitors. According to the GC, protecting competitors would constitute a sufficient ground to enforce Article 102 TFEU. This is at odds with the Guidance Communication which suggests that protecting competitors is not, in and of itself, a stand-alone goal of Article 102 TFEU. In the Guidance Communication, Article 102 only protects competitors to the extent that consumers might be harmed;
- §241 says that there can be an abuse as long as a rival is deprived of the ability to compete “for the entire market and not just for part of it”. In other words, even de minimis foreclosure is arguably caught under the concept of abuse. No matter what, a dominant company cannot tie a single customer on the market. This not only inconsistent with the Guidance effects-based ethos, but also with the Discussion paper of 2005 which had elevated the concept of the “tied market share” as a key decisional criterion. It is also at odds with the Commission’s decisional practice notably in Distrigas;
- §258 weakens the relevance of the so-called “suction effect” test, in saying that “the fact that the retroactive rebate schemes oblige competitors to ask negative prices from the applicants’ customers benefiting from rebates cannot be regarded as one of the fundamental bases of the contested decision in showing that retroactive rebate schemes are capable of having anti-competitive effects“.
With this in mind, I was a little reassured by Miguel de la Mano‘s (DG COMP) presentation at our last GCLC lunch talk on Friday. In essence, Miguel considers that the GC’s ruling is fully congruent with the Guidance Communication. In contrast, Alan Ryan (Freshfields) finds a number of flaws in the judgment (and has appealed it before the ECJ). See slides below for more.
My take: a dominant firm does not necessarily foreclose the entire market through loyalty-inducing practices. It all boils down to assessing the share of the dominant firm’s customers that is subject to the impugned practice (e.g., a dominant firm may apply a single branding commitment to only 10% of the relevant market). Against this background, foreclosure should only be presumed when the dominant firm applies the loyalty-inducing practice to its entire customer base.
And a proposal: not unlike under Article 101 TFEU, the Court and the Commission should recognize that dominant firms can benefit from safe harbours. In light of the rules on vertical agreements, as long as the tied market share < 30%, Article 102 TFEU should be deemed inapplicable.
Case T 155 06 Tomra v Commission
(Image possibly subject to copyrights: source here)
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