Chillin'Competition

I am coming off the bench to replace Alfonso (fans do not worry: it is all temporary, and the All-Star blogger will be back and kicking very soon!).

When he asked me to prepare a post, I thought it would be a good idea to write on pending cases before EU courts with which our readers are maybe less familiar, but that raise most interesting issues nonetheless. Those who know me will not be surprised to know that it is once again all about electronic communications.

Today’s post is on a reference from a preliminary ruling coming from a Dutch court (Case C-518/11), that I find most intriguing. According to the information found on the website of the Court, the hearing took place on 22 November 2012.

The Gerechtshof te Amsterdam submitted a list of eight (very detailed) questions. It seems that the municipality of Hilversum included a ‘tariff-limiting clause’ when it sold its cable television activities to a third party. This factual scenario raises important questions relating to the scope of the Regulatory Framework for electronic communications and others relating to the scope of Article 101 TFEU.

• Scope of the Regulatory Framework: The Dutch court asks whether the provision of cable television services to end-users is subject to the Regulatory Framework and whether the fact for the municipality to cap retail tariffs is compatible with the sector-specific regime. This question is relevant not so much because of the (predictable) outcome but because it shows that the artificial content/network divide found in the Regulatory Framework is plain impracticable in the current technological landscape.
  
• Scope of Article 101(1) TFEU: Is it contrary to Article 101(1) TFEU to impose tariff-related conditions when selling a business? Because the seller in this case is a municipality, an array of sub-questions come to mind. Is the municipality engaged in an economic activity when imposing such conditions? Is this conduct contrary to ‘the obligation of Union loyalty’ (as drafted in the questions)? This set of questions is probably more interesting from a substantive perspective, at least so because the chances of an unexpected outcome are probably higher.

Another post on another not-so-mainstream case will follow soon!

Pablo

We are a disgrace:

Nico is missing in action in some lost island, and I’m on forced semi-vacation in Spain due to a humerus fracture provoked by a humorous ski fall, and unable to do anything but bad jokes (see above) and read (on the antitrust-related side I’ve particularly enjoyed the two in the pic above -Interop, and Antitrust and the bounds of power- which I would recommend you to read whenever you injure yourself..).

I’m telling you this because since Nico and I are unfit (that is, even more) to take care of the blog as we’d like, our friend Pablo Ibanez Colomo (LSE) has accepted to write some stuff in the coming days. We’re grateful to him, even if we know there’s a risk that you’ll like his posts more than ours! 😉

Write to you soon!

Google has reached a settlement with the FTC!   Details can be found here.

The settlement concerns the licensing practices of some key technologies to competitors and the management of campaigns by online advertisers. The investigation into Google’s search-related practices, on the other hand, has been closed (by a 5-0 vote).

According to the press release, Google’s ‘Universal Search’ and other changes can be ‘plausibly justified as innovations that improved Google’s product and the experience of its users’.

We are all wondering the impact this outcome will have on the (European) Commission’s ongoing investigation (although we presume this did not catch DG Comp’s officials by surprise).

Btw, I will be speaking soon about antitrust and search engines, so these developments come in handy (not sure if that’s the right expression considering that for a couple of months I’ll be a one handed man..)

I’ve just realized that I forgot to share some good news with you.

A few days ago I learnt that Nicolas had been promoted to Professeur Ordinaire. To be frank, given my absolute ignorance about Belgian academia (among vety many other subjects), going from Professor to Ordinary Professor rather sounded like a downgrade.

But nope, Google tells me that Nico has managed to attain the highest possible academic position at age 33, which is very hard to understand impressive. While writing this I’ve realized that he also turned 34 on Saturday (which of course I forgot).

Congrats and best of lucks, Nico!

A couple of days ago the FT published an interesting piece on how market power in the tech sector might disprove assumptions about technological rates of progress. According to the author, science fiction had long anticipated the trends we are seeing today.

I could dsummarize the piece, but since (i)I broke my arm/shoulder skiing; (ii) it’s taking me ages to type with my left hand (not that there’s much else I can do..), and (iii) many of you are probably on holidays, you can probably spare a couple of minutes to read it here.

Btw, happy new year !!!!

My Xmas gift here: Poster – LLM in Competition and IP Law, the new poster of the University of Liege LL.M in Competition and IP law.

This programme keeps improving.

We have this year a very enthusiatic group of studs’ from all over Europe and beyond.

And for the upcoming year, we plan to (i) open a new academic position (senior lecturer) on a set of IP courses; and (ii) pursue the official lauching of the Liège Competition and Innovation Institute (LCII)

Dear Santa,

I have been very brave this year. So here’s my Xmas list for 2013:

• A Commission Article 10 inapplicability decision;
• An article 102 TFEU collective dominance case;
• A judgment quashing a Commission decision under Article 102 TFEU;
• Many, very many rulings in the spirit of Post Danmark;
• No ruling in the spirit of TeliaSonera;
• A recognition that dominant firm conduct can be de minimis, and in turn presumably lawful;
• Individual penalties for EU competition law infringements;
• Less articles on Article 6 ECHR and, more generally, on procedural issues;
• The clear recognition that the “restriction by object” concept is probabilistic in nature (i.e. a restriction by object means nothing but conduct which will very likely exert anticompetitive effects);
• A guidance letter from the Commission;
• DG COMP to take a few complaints lodged by SMEs, and not only open investigations when Google, Microsoft, Samsung or Apple are concerned;
• Shorter judgments;
• Judgments in understandable English (or French);
• A recognition that coordination theories of harm related to horizontal cooperation agreements should be assessed on the basis of the Airtours standard;
• Impact studies in competition cases (on this, am not so sure actually);
• A flexible traineeship at DG COMP 🙂

Thanks Santa. You can deliver all this throughout 2013, not need to bring everything tomorrow.

Nicolas

PS: to all readers, a terrific Xmas