Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Waitlist now active for EU Courts and Competition Law: Myths, Gaps and Challenges

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The tickets for the upcoming workshop “EU Courts and Competition law: Myths, Gaps and Challenges” (Brussels, 3 July 2017, 15.00-19.00) were gone within roughly 10 minutes; thank you for the interest!

We have now activated a waitlist. We will do our best to try to accomodate as many people as possible; if you are still interested please click here.

 

Written by Alfonso Lamadrid

19 June 2017 at 9:51 am

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Registrations now open

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registrations-open

To register for our upcoming workshop “EU Courts and Competition law: Myths, Gaps and Challenges” (Brussels, 3 July 2017, 15.00-19.00), please click here.

 

Written by Alfonso Lamadrid

19 June 2017 at 8:59 am

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EU Courts and Competition Law: Myths, Gaps and Challenges- 3 July 2017- Additional Info

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Next Monday at 10am we will be posting here a link to register to our litigation workshop  on the 3rd of July (remember that seats are very limited this time -not looking for sponsors equals smaller venue- and that the last event “sold” out in 6 minutes…).

Since we are trying out a new and more dynamic/ interactive format we do not yet have a traditional programme. Here is nonetheless some additional information which you might find useful:

The title of the workshop will be “EU Courts and Competition Law: Myths, Gaps and Challenges“. And that is what we want to discuss. Speakers and attendees will have a chance to reflect on a variety of topics related to the role of EU Courts in competition law matters.

We did not exaggerate when we said this would be a high-level event. The list of confirmed speakers so far includes representatives of the EU Courts like Advocate General Nils Wahl and General Court Judge Krystyna Kowalik-Bańczyk, former GC Judge Nicholas Forwood (White&Case), specialized agents of the Commission’s Legal Service, namely Fernando Castillo and Eric Gippini (co-organizers and authors of the book we will also be presenting) as well as Nicholas Khan; high-level academics including Anne-Lise Sibony (Univ. Catholique de Louvain), Pinar Akman (University of Leeds) and our very own Pablo Ibañez Colomo (College of Europe, LSE and Chillin’Competition), as well as eminent and Court-experienced practitioners like Jean François Bellis (Van Bael & Bellis), Denis Waelbroeck (Ashurst), Thomas Graf (Cleary Gottlieb), Trevor Soames (Quinn Emmanuel), José Luis Buendía (Garrigues) as well as myself, Alfonso Lamadrid (Garrigues).

Attendees will also have a chance to contribute to the discussions. We very much look forward to seeing you there!

Written by Alfonso Lamadrid

16 June 2017 at 1:13 pm

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Copyright reform against the background of Pay TV and Murphy

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Creative Commons

Yesterday I presented at an event hosted by Sidley Austin and organised by ACT (nothing to disclose, in case you are wondering). As you know, I have been following all issues relating to geo-blocking and Digital Single Market with a lot of interest, and this event was a great occasion to exchange ideas about ongoing discussions on the interface between copyright reform and EU competition law.

The slides I used can be found here and the short note I prepared for the occasion, here.

On the interaction between copyright and competition law

One of the key points I emphasised during my presentation is that copyright cannot be understood without competition law, and vice versa. In the same way that competition law enforcement may have an impact on copyright, competition law analysis may very well change if the underlying ‘economic and legal context’ changes – just think of E.On Ruhrgas, which is one of the cases I mentioned and which exemplifies this idea particularly well.

I have lost count of the times I have explained why I believe the ongoing Pay TV case is controversial (most recently here in an event that took place last month). The case would be far less controversial if ongoing reforms are passed, and (at least some) online broadcasts become subject to the ‘country of origin’ principle, which currently applies to satellite.

On the decentralised enforcement of EU competition law

As the event was attended by copyright lawyers, I also emphasised that enforcement does not only come from the Commission. Intervention may originate in a dispute before a national court, or in a decision adopted by an NCA. After all, Coditel II and Murphy, the two key cases in this discussion, reached the Court of Justice through a preliminary reference.

This insight is important to put in perspective some of the most recent developments in the Pay TV case. There have been hints implying that the Pay TV case should be understood as a one-off initiative, and that the Commission would seek to ensure that small film producers are not affected by a finding of infringement. Insofar as the enforcement of Articles 101 and 102 TFEU is decentralised, any hints in this sense provide only limited relief – they do not and cannot rule out action at the national level (just think of what is going on in relation to online selective distribution and online hotel booking!).

On freedom of contract and secondary law

I have come to understand that it is speculated or argued in copyright circles that geo-blocking could be saved by a reference to ‘contractual freedom’ in the so-called SatCab Regulation. We competition lawyers have head these arguments before. It is clear to us that a cartel agreement – or any other agreement that runs counter to Article 101 TFEU – could not be saved in the name of contractual freedom, and that primary EU law would in any event take precedence over the Regulation, if eventually adopted.

I took an example from Microsoft to illustrate this idea. As many of you remember, there was a section in the decision devoted to whether the notion of interoperability used by the Commission was in line with the way in which the concept was defined in the Software Directive (at the time, Directive 91/250). The GC, rightly and uncontroversially, stated that this discussion was ultimately irrelevant, as a Directive cannot constrain the scope of action under Article 102 TFEU.

Written by Pablo Ibanez Colomo

15 June 2017 at 11:45 am

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The elephant in the Courtroom: it’s the dominance, stupid!

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elephant courtoom

This blog has always been a bit Court-centric, in the sense that we typically pay more attention to what comes from Luxembourg rather than to what comes from Brussels. To our mind that is logical, but it also is certainly not the general rule. Our forthcoming workshop on EU Competition litigation (see here) is a testimony to that approach.  And this post aims at giving you an example of the sort of issues that we would like to discuss at the workshop.

Most of the criticism to the case law of EU Courts in the competition field has focused on abuse of dominance cases. And when any commentator  -ourselves included- criticizes or discusses the case law, we all tend to focus on the substantive legal tests applied to discern the legality of a given conduct (we discuss presumptions, capability, likelihood, the need to show foreclosure and the relevant extent of foreclosure, etc). All those are extremely relevant, and there are arguably gaps in the law, but we may be missing out something; the title of this post may admittedly give you a hint.

Back in March we organized a sort-of- high-level-Spring Meeting in Madrid to discuss the most important competition cases of the past 20 years with some of the people who worked closely on them. One of the speakers at this event was Eric Gippini-Fournier, from the Commission’s Legal Service. Readers of this blog know Eric from, among other things, his Friday Slot interview and for being –together with Fernando Castillo- the author of this gem of a book and –also with Fernando- co-organizer of our litigation workshop.

Many also credit –or rather blame- Eric for some of the case law regarding abuse of dominance, as he was a successful Commission lawyer in some of the most controversial unilateral conduct Court cases in recent years, including  Michelin II, Lélos, Telefónica, Wanadoo, Astra Zeneca, Tomra or Post Danmark II. Few people, if anyone, have comparable litigation experience in Art. 102 cases. During his intervention in Madrid Eric logically defended the Court’s approach to several of these cases, and also made an important point that I had not really heard before, or not so clearly put. He explained that, in his view, the strict case law on Art. 102 and the concept of special responsibility as interpreted by the Courts only makes sense provided that the market definition and the assessment of dominance are serious, thorough and strict. He noted, however, that the Court’s ability to exercise its review, to give guidance and to advance the law has been hindered by applicants’ unwillingness or ineffectiveness to challenge market definition and/or dominance in Court (perhaps that also had to do with the Commission historically prioritizing cases where these questions were not in dispute). And as regards dominance, even when it is challenged, the discussion remains often at the level of market shares and there is comparatively little recourse to the sophisticated tools and methods routinely used, for example, in merger control, to assess the competitive constraints and the margin for independent action of the dominant company.

All this explains why in this area we are stuck in the same place as 30 years ago, using rudimentary tools and assessments and most often looking only at market shares (an approach that has been largely abandoned in other jurisdictions as well as in the EU when it comes to merger control). Even “old” cases such as Hoffmann-La Roche discuss in detail the competitive constraints faced by the company, in a manner that has become rare today.  

There may be a negative externality in academic commentary in this area that has contributed to hiding a possible problem. Market definition and dominance issues are so factual and case-specific that commentary on the case law dealing with them is surprisingly scarce (people other than parties to the cases understandably care more about substantive principles of general application). I, for one, only know of one recent article in years that has tried to analyze the stance of the EU Courts in this regard (which underlines that market definition involves many legal, factual and logical assessments subject to full, nor marginal, judicial review).

Market definition and dominance may thus very well be the elephant in the room when it comes to judicial review of abuse of dominance cases (even if these are by now almost extinct –and I mean the Court cases, not the elephants) (for more on elephants from me –really- see here from min. 3.28 onwards). Whilst everyone acknowledges that market definition’s in-or-out methodology is by nature inaccurate and prone to errors, in the absence of a better tool we continue to rely on it. And with a sufficiently contrived/procrustean market definition (see here, also the comments, for our best examples), almost any case may fly. And that is partly because the inaccuracies inherent market definition fail to be corrected in the assessment of market power, due our excessive reliance on market shares [an exception –although again in the merger field was Microsoft/Skype-; by the way, given the Commission’s efforts to conveniently ignore this Judgment they could have as well let us win it! 😉 ]

Admittedly, one could try to see cause for optimism. If one reads carefully the Judgments in cases like Microsoft (2007), Clearstream (2009), Astra Zeneca (2010) or CEAHR (2010) the picture that emerges is one of thorough review of market definition (this even if the Court was formally undertaking a marginal review), and of abandonment of market-share only approach (Cisco, 2013)).

On the negative side, however, the problem is that these cases don’t get to the General Court anymore. Why would the Commission take the odds of facing such a scrutiny? And why would companies take the risk of not offering commitments when the (even if sometimes misleading) statistics suggest to them that taking a case to Court may be hopeless? And since commitments decisions do not require complex assessments of market definition and dominance, we are left without any Commission guidance on this front [a bit like what happens in Art.101(3)]. And this is a problem for national competition authorities and national judges as much as it is one for companies and their economic and legal advisors.

What now then? In my view, it is clear that the Commission is unlikely to shake things in this area, as relying on market shares in 102 cases is pretty comfortable, particularly when one gets to define the relevant market. With the General Court effectively sidelined from this debate for now, the initial reflex could be to expect the CJEU to provide guidance in the form of preliminary rulings. In this case, however, that might not happen, as national Courts are most unlikely to refer questions that they see as not having to do with the interpretation of law, but with economic of facts, and as such inadmissible.

For further reflections on this issue and on the possible way out, join us on the 3rd of July in Brussels.

Written by Alfonso Lamadrid

8 June 2017 at 10:34 am

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CHILLIN’COMPETITION LITIGATION WORKSHOP – 3 JULY 2017- (SAVE THE DATE!)

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In just four weeks, on Monday 3 July we will be holding a high-level half-day (15-19 p.m.) workshop in Brussels to discuss the role of the EU Courts in competition law.

This workshop will be jointly organized by Chillin’Competition (i.e. Pablo and myself), Fernando Castillo and Eric Gippini, from the Commission’s Legal Service, authors of the book “Evidence, Proof and Judicial Review in EU Competition Law”, that we will also be presenting at the workshop.

We would like to explore both what has happened in the past 60 years and what could, should or might happen in a new scenario, with an enlarged General Court, a fall in the number of annulment proceedings and an apparent rise in preliminary references following the decentralization (and delegalization?) of competition enforcement, among others. We intend to discuss theory and practice objectively, from different perspectives, and to identify possible myths, challenges or gaps concerning judicial review of competition cases.

These are, as you know, among our preferred topics here at the blog (see e.g. here and here) as well as the subject-matter (in part) of Pablo’s forthcoming book, “The Shaping of EU Law”.

In order to gather different expert views we will be inviting approximately 15 high-level speakers from the Institutions (we already have high level representatives from both Courts and the Commission), academia and private practice to share a brief reflection (within 5 minutes) on any issue related to judicial review on which they may have strong or interesting views  (for an example, click here). We will then have some time to discuss every point also hearing the views of other attendees.

The workshop will take place at the University Foundation/Fondation Universitaire in Brussels (Rue d’Egmont, 11, 1000 Brussel)

We will very soon be back with more information. We will be personally inviting a number of people, and will then open up registrations (for free) to anyone interested (although places are limited this time to 140).

Registrations will be possible via a link that we will be making available on the blog on 19 June at 10.am 

An exception: anyone willing to come from the GC / CJEU will have a guaranteed seat (in that case please just drop us a line).

P.S. We hear that at a recent conference at Oxford University attendees were given ice cream; well, we welcome competition and accept the challenge…

 

Written by Alfonso Lamadrid

6 June 2017 at 4:51 pm

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Book review: EU State Aid Control. Law and Economics, by Philipp Werner and Vincent Verouden

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Werner and Verouden

One of the big events of the season is the launch of Philipp Werner’s and Vincent Verouden’s, EU State Aid Control. Law and Economics, which came out a few months ago. It is a remarkable achievement for which they should be congratulated. Together with a large team of authors, they have truly managed to blend legal and economic analysis. It would have been already impressive as a law book tout court, but this aspect makes it special.

I was honoured that they asked me to review the book for the European State Aid Law Quarterly. My review has just come out, and has done so in a special 15th anniversary issue that matches the importance of the book (congratulations to the EStAL team, by the way: what they have achieved is wonderful too). When browsing through the review, I was proud to see an article co-authored by a former student of mine, Sylvain Petit, together with Adrien Giraud, a good friend of the blog.

Read the rest of this entry »

Written by Pablo Ibanez Colomo

30 May 2017 at 5:41 pm

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