Happy Bday
The Polish Competition Authority – UOKiK – has posted on its website a whole book entitled “Changes in Competition Policy Over the Last Two Decades“.
This book was written to celebrate the 20th anniversary of UOKiK. The list of authors is impressive.
No brainer
We have already commented the Court’s 2009 ruling in Glaxo.
In going through the judgment this morning, I got shocked again.
Frankly speaking, this judgment is a mascarade. What the Court has thrown in this judgment is a straightforward statement that it has no interest in substantive competition law issues. To justify this, the Court dissimulates itself behind (i) the black letter, old-Treaty wording (name it judicial textualism); and (ii) its existing case law (name it judicial conservatism).
Look closely at §§59-63. In fact, it takes the Court just a few lines to quash the CFI’s ruling, which raised a novel – and worth discussing – question of substantive competition law (i.e. the role of consumer welfare under Article 101 TFEU) . Here is what the Court says in this case:
1. We’ve said that a practice restricting parallel trade is a restriction by object a million times (§59)
2. This applies to pharmaceuticals. The AG has said so (!), and we made a case in pharma a while ago. (§§60-62)
3. The wording of the Treaty does not talk of consumer welfare. Competition is thus protected as such.
4. **** off
A discussion of the very issue (regardless of its outcome) would have been – at the very least – welcome. I believe, indeed, that the role of the ECJ is not only (1) to scrutinize cases (judicial review) but (2) to take stances on novel issues and set substantive standards (rule making).
Two final remarks:
- In the EU, executive and legislative institutions can be prosecuted for failure to act. Why is the Court immune from such proceedings?
- Lately, the Court has delivered remarkable judicial output in other fields (e.g. institutional law, the four freedoms, etc.) Why has substantive competition law been left unaffected by this evolution?
(Image possibly subject to copyrights: source here)
Summer time
The good thing about summer time:
- No classes
- No exams
- No conferences
- Less emails
Over the past days, I have managed to clean up my mailbox and, more importantly, to write a new paper, which I just posted on ssrn. It deals with merger remedies in coordinated effects cases.
This is still work in progress. Comments welcome, as usual.
(Picture subject to copyrights: source here)
PS: re. picture – by now, most of you should have understood that I am a huge rock n’ roll fan.
Slides of the 48th GCLC Lunch Talk – Settlements
I post hereafter the slides presented by K. Dekeyser (DG COMP) at the 48th GCLC Lunch Talk last week.
Slides Dekeyser – Putting the Settlement Procedure into Practice – 7-7-2010
New Interesting Book
A new book, with follows a very novel perspective on the Commission’s decisional practice, has been published.
“European Commission Decisions on Competition: Economic Perspectives on Landmark Antitrust and Merger Cases” is now available from Cambridge University Press. This reference book offers a classification and analysis of all European Commission decisions adopted pursuant to European antitrust rule (i.e. Articles 101, 102 and 106 of the FEU Treaty) from the Treaty of Rome of 1957, up to and including 2009. It also includes a sample of landmark European merger cases. The decisions are organized according to the principal economic theory applied in the case. For each economic category, we describe in a fixed template format the seminal decision(s) that became a reference point for that type of (anti)competitive behavior. All subsequent decisions in which the same economic principle was applied are listed chronologically.
For more information and to order, click here
New Entrant
We are pleased to announce that we have a new competitor. Pay them a visit, it looks really good.
It’s a Long Way to the Top
See below. Found on LL.M Guide, a website advertising LL.Ms. One student made a strong plea in favour of our LL.M. in Liege. This triggered disagreement on the forum, with a respondent rightly arguing that I am not a “leading competition scholar” (as opposed to other “gods” of competition law, amongst which the amazingly good and esteemed Prof. Richard Whish).
The chap who replies to him certainly has a point. It is still a long way to the top for me. If one day, I could get only close to Whish’s teaching skills…
Anyway, the funny thing is that I have thought a lot in the past weeks as to how I could improve my way of doing business. At this stage, my conclusion is that I need to refocus a little on things that really matter. To this end, I am facing a number of options on which I would certainly love feedback from my readers.
As far as time management is concerned – am running on scarce resources – shall I
- Stop the blog?;
- Quit GCLC?;
- Quit the new born BSC?;
- Surrender the Direction of the Liege Institute for European Legal Studies?
- Quit other courses which I give on an occasional basis (EDHEC in France, MGIMO in Russia, etc.)
- Stop organizing conferences
As to the selection of my areas of scientific interest, shall I:
- Keep an interest in the various areas of competition enforcement (101, 102 and merger control) or focus only on a micro area of EU competition law?
- Keep following Belgian and French competition laws, in parallel to EU competition law?
- Start writing papers in English only, or continue my 50/50 balance between contributions in French and English?
Happy to get your feedback on the above.
Nota: The picture above is taken from one of the greatest rock LPs of all time (source here). This LP features the title “It’s a long way to the top”, which has one of the most addictive and catchy riffs I have ever heard.
Greek Prize
A most welcome initiative: The Hellenic Competition Commission, wishing to promote competition culture in Greece, and in the context of its competition advocacy efforts, announces an annual prize of 3,000 euros for the best scientific article in competition (antitrust) law or economics written in Greek by young scholars. Below an announcement in Greek and in English, which defines in detail the conditions and process to be followed.
Competition Law Event of the Year
See programme below and link hereafter.
GCLC – Sixth Annual Conference – 7 & 8 October 2010 – Programme and Registration Form.
DAY ONE
9:00 Welcome Words
Paul Demaret, Rector of the College of Europe
9:10 Presentation of the Conference
Bernard van de Walle de Ghelcke, President of the GCLC, College of Europe and Linklaters
9:20 Keynote Speech – The European Union Courts Experience and Role In Dealing With Competition Law Cases
Sir David Edward, KCMG, QC, former judge at the Court of First Instance and at the Court of Justice, em. prof. University of Edinburgh
I. Morning Session – General Issues
Chair: Jacques Bourgeois, Former-President of the GCLC, College of Europe, WilmerHale
09:40 Judicial Review, the Rule of Law, Regulatory Accountability and the courts’ ability to promote policy changes
Damien Géradin, University of Tilburg (UvT) and Howrey, and Nicolas Petit, University of Liège (ULg)
10:05 Discussant: Takis Tridimas, College of Europe
10:15 Coffee Break
10:35 Judicial Review in EU Economic Regulation Cases
Jacques Derenne, University of Liège (ULg) and Hogan Lovells
11:00 Discussant: Ben Smulders, Legal Service of the European Commission
11:10 Reflections on the EU Courts’ Involvement in Competition Proceedings: Status Quaestionis and Main Trends
Marc van der Woude, Erasmus University Rotterdam (EUR) [TBC]
11 :35 Discussant: Eric Barbier de la Serre, Latham & Watkins
11:45 Q&A Session
12:30 Lunch
II. Afternoon Session – The EU Courts’ Scrutiny over the Commission in Competition Law Cases
Chair: Carles Esteva Mosso, Director, DG Competition
13:30 Annulment Proceedings in Antitrust Cases (Article 101 and 102 TFUE) – Standard of Judicial Review over Substantive Issues
David Bailey, Senior Référendaire at the U.K. Competition Appeal Tribunal (CAT) and King’s College London (KCL)
13:55 Discussants: Theofanis Christoforou, Legal Service of the European Commission and Mario Siragusa, College of Europe and Cleary Gottlieb
14:15 The General Court’s Full-Jurisdiction over Fines in Competition Cases
Bo Vesterdorf, Herbert Smith and Plesner, Former President of the Court of First Instance
14:40 Discussants: Wouter Wils, Legal Service of the European Commission and KCL, and Ian Forrester, White & Case
15:00 Annulment Proceedings in Merger Cases
Philippe Chappatte, Slaughter and May
15:25 Discussants: Marleen Van Kerckhove, Arnold & Porter and Marc Pittie, Bredin Prat
15:45 Coffee Break
16:05 Annulment Proceedings in State Aid Cases
Massimo Merola, College of Europe and Bonelli Erede Pappalardo
16:30 Discussants: Vittorio Di Bucci, Legal Service of the European Commission and Leigh Hancher, University of Tilburg and Allen & Overy
16:50 Locus Standi before EU Courts, with Special Focus on State Aid
Josef Azizi, Judge at the General Court
17:15 Discussants: Leo Flynn, Legal Service of the European Commission and Thomas Jestaedt, Jones Day
17:35 Q&A Session
18:00 End of Day One
DAY TWO
Institutional and Procedural Challenges Faced by the EU Courts in Competition Law Cases
Chair: Sir Christopher Bellamy, Linklaters, former Judge at the Court of First Instance and at the CAT
9:00 The Role of the Court of Justice in Ensuring Compliance with Fundamental Rights in Competition Cases since the Lisbon Treaty
Nils Wahl, Judge at the General Court
9:25 Discussants: Dean Spielmann, Judge at the European Court of Human Rights and Denis Waelbroeck, Free University of Brussels (ULB) and Ashurst
9:45 Expert Economic Evidence in Competition Law Cases
Hans van Houtte, Katholieke Universiteit Leuven (KUL)
10:10 Discussants: Simon Bishop, RBB Economics and Luis Ortiz Blanco, Garrigues, University of Madrid and College of Europe
10:30 Q&A Session
11:00 Coffee Break
11:20 The Pros and Cons of Specialized Competition Courts, Chambers and Judges
Roundtable Discussion moderated by Sir Francis Jacobs, KCMG QC, Fountain Court, former Advocate General at the Court of Justice
Discussants: Charles Dhanowa, OBE Registrar of the CAT, Jacqueline Riffault Silk, Court of Appeal of Paris, and Ingeborg Simonsson, Stockholm City Court
12:30 Close of Conference
Lost
A year ago, Nicolas resorted to the series “Lost” to note that one year after the inception of the settlement procedure, no settlement decision had been adopted. That decision still took some more time to see the light: only a month ago was the first settlement decision issued in the DRAMS cartel case. It’s interesting to note that whereas one of the purported objectives of the introduction of settlements in EU competition law was to “help the Commission deal more quickly with cartel cases” (Kroes dixit), this particular case had been under investigation pursuant to a leniency application lodged 8 years ago!
Season 2: this week marked the “second anniversary” of the oral hearing in the air cargo cartel case (that’s easy to remember since the hearing took place in the same dates where Spain won the Eurocup…), and a decision is yet to be adopted. Have these airplanes also been “lost”?
Btw, in a flight to the US a couple of days ago I accidentally happened to read how the last chapter of the series ended. There was no “spoiler alert” so beware of magazines in transatlantic flights.
Chillin'Competition 
