New Book on Associations (Federations) of Undertakings and Competition Law
Charles GHEUR and Philippe LAMBRECHT, of the Belgian Federation of Undertakings (FEB), have just published
The book is edited by Larcier.
No book review for this one, because I am conflicted (I wrote the chapter on exchange of information agreements). This being said, this book is one of the first to provide a comprehensive overview of the implications of EC/national competition rules for federations of undertakings. It will surely help many in-house lawyers from federation/association of undertakings in their daily work.
Apple, Google, and more on Interlocking Directorates
Last Monday, Arthur Levinson -until now a member of the board of both Apple and Google- resigned from the board of Google. The resignation follows that of Eric Schmidt (Google’s CEO), who abandoned his position on the board of Apple in August. Both moves were aimed at addressing the FTC’s concerns over the possible anticompetitive effects arising from the close inter-personal nexus between the two companies.
Even though the FTC’s investigation on this matter may have reached its end, Google has not moved away from the antitrust spotlight. The initial book settlement was derailed pursuant to the numerous objections put forward against it, and the District Court has required a new version to be delivered by November 9th for preliminary approval. Meanwhile, the DOJ’s investigation concerning hiring practices at Google, Yahoo and Apple is ongoing. And some suggest that this could only be the beginning…
Those cases, as well as last week’s announcement of the opening of an investigation about IBM’s conduct in the mainframes market, have been seen as consequences of the stricter approach undertook by antitrust enforcers under the Obama administration regarding high-tech markets, particularly in the presence of network effects.
Now, coming back to the Google/Apple issue: in the US, the Google/Apple investigation constitutes the second challenge to interlocking directorates brought by the FTC under Section 8 of the Clayton Act over the past two years (the case brought against Commscope was resolved by a consent decree in December 2007).
In Europe, the ECJ and the European Commission have acknowledged that interlocking directorates and, more generally, minority shareholdings, could wield anticompetitive effects. It has also been held that such effects could be dealt with under Articles 81 and 82 EC (see the Judgment in cases 142 and 156/84, British American Tobacco and Reynolds v. Commission, and the Commission’s decision in case 93/252, Warner-Lambert/Gillete).
However, in spite of recent evolutions in merger control (see the Ryanair/Aer Lingus decision, currently pending before the CFI), to my knowledge, the Commission has never initiated any proceedings challenging the acquisition of minority shareholding and/or interlocking directorates since the Gillete case in 1993.
As a consequence of this lack of interest on the part of antitrust authorities and, to a certain extent, of commentators too, this remains, one of the under-explored areas of EC competition law. In contrast with the clear prohibition contained in Section 8 of the Clayton Act, companies in Europe are again faced with considerable legal uncertainty. In sum, a great topic for research if anyone’s interested.
For a brief and recent account of the state of the law in the US and the EU on this subject, check out these: US – EU.
(Source: image possibly subject to copyrights)
New Paper on Exclusionary Abuses Following The Guidance Communication
I paste below the abstract of a new paper, which I presented a few months ago in Warsaw, at a seminar on abuses of dominance and new technologies. As usual, the paper can be downloaded here on ssrn.
The purpose of the present article is to offer thoughts on the “Guidance Communication on the Commission’s Enforcement Priorities in Applying Article 82 of the EC Treaty” and, in particular, to review the requirements which the Commission must meet in Article 82 EC cases when it purports to apply the Communication’s economics-oriented, effects-based. In addition, this article seeks to assess whether the Communication’s effects-based approach really entails a paradigmatic shift towards increased competition economics, comparable to the (r)evolution that has taken place in other areas of EC antitrust enforcement since the early 2000. It comes to the conclusion that whilst the Communication marks a welcome economic sophistication of the Commission’s Article 82 EC enforcement policy, it nonetheless often fails to go beneath the surface of modern antitrust economics, and thus provide only limited guidance to firms and their counsels.
Speakers on antitrust and search engines
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The Spanish Competition Authority declares a collective bargaining agreement contrary to EC and Spanish competition law
The CNC (Spanish Competition Authority) recently adopted a decision sanctioning a stevedoring trade association (over 900.000 euros) and several labor unions (with fines ranging from 3.000 to 168.000 euros) for having concluded a collective bargaining agreement contrary to Articles 81 EC and 1 LDC (Spanish Competition Law).
Nobel Prize in Economics for Oliver Williamson
On top of his work refining the Coase “make it or buy it” theorem, Oliver E. Williamson, is also the author of two absolute must reads for all antitrust lawyers:
- “Economies as an Antitrust Defense: The Welfare Tradeoffs.” 58 American Economic Review. 1, 18-36 (1968).
- Market and Hierarchies: Analysis and antitrust Implications, New York, Free Press, 1975
Week-End Ruminations
1. The fact that the Glaxo case took 11 years to solve irritates me. Is it reasonable to expect market players from both sides – pharmaceutical companies and parallel traders – to remain in a state of commercial uncertainty for so long?
2. In retrospect, the Glaxo saga demonstrates that, for more than ten years, the law of Article 81(3) EC (and also of Article 81(1) EC) has been in a state of flux, thereby undermining the Commission’s optimistic contention that the law of Article 81(3) EC is – and was at the time of the adoption of Regulation 1 – crystal clear. With such conflicting judgments being handed down every now and then, one may really question whether Article 81(3) exhibits the necessary features to have direct effect (clarity, precision, and unconditional nature).
3. Why is the table of contents of French law books systematically located at the end? This is really inconvenient.
4. And a note of satisfaction. At the European Competition Day in Sweden (7 October 2009), P. LOWE has apparently endorsed the views presented by the GCLC, during its last annual conference.
LOWE is reported to have said:
“It is essential for business […] to know what is acceptable and what is not“;
He added:
“we recognise the need for guidance – to know what behaviour is anticompetitive.”
Too bad LOWE is leaving COMP in the next weeks. And thanks to C. HUMPE for the pointer. Christophe and I have been – amongst others – drafting the first chapter of the forthcoming GCLC book on Regulation 1/2003. Our main area of concern lies in the Commission’s overreliance on negative enforcement, and the absence of any sort of positive enforcement whatsoever.
Image – Source: Wikimedia
Seminar on Current Issues in Merger Enforcement – Warsaw
On 29 October 2009, the Office of Competition and Consumer Protection of Poland will organize a Seminar on Current Issues in Merger Enforcement. Seminar takes place in Warsaw. More info can be found hereafter: program
Webcast of the EC Competition Day – 7 October 2009
The full webcast of the EC competition day can be found here.
Chillin'Competition 
