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14th Annual GCLC Conference: Remedies in EU Competition Law (31 Jan-1 Feb)

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gclc

One of the best traditions of the Brussels competition law community is around the corner: the 14th Annual GCLC Conference will take place on 31 January and 1 February at the Residence Palace.

The conference has all the bits that have turned it into a must-go event: a topical theme of major theoretical and practical relevance; and an impressive line-up of speakers. The updated programme is available here.

Chillin’Competition will be represented at the conference. I am honoured to have been invited to speak in the last session, where I will go back to one of my favourite themes: regulatory vs antitrust remedies. I will address the policy implications of remedies.

SPECIAL OFFER: The organisers are kind enough to offer a free spot to the first Chillin’ reader sending an email to remedies.gclc@gmail.com (thanks so much!). The subject of the email should be: ‘Chillin’ @GCLC’.

We look forward to seeing many of you there!

Written by Pablo Ibanez Colomo

22 January 2019 at 10:00 am

Posted in Uncategorized

Save the date- The Ultimate Chillin’Competition Conference- 20 November 2018

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venue.png

The 4th Chillin’Competition Conference will take place in Brussels on 20 November 2018.  

Here is what we can tell you for now:

-It took us a while to settle on a venue (because Pablo mocks my ambitions; the picture above corresponds to a real recent Whatsapp conversation regarding possible venues. His counterproposal reveals how seriously he takes me…).

-We have so far invited only one speaker, who has very kindly accepted: Commissioner Vestager will once again be our star speaker;

-The theme of the conference will be: “Concepts“. We will pick a few common but often misunderstood, or yet unclear, concepts and we will invite a group of experts to discuss their meaning and implications. It’s a bit what we did with the notion of “neutrality” in our 2nd conference, but with a broader scope. We will discuss horizontal concepts, not cases or industries.

-We are selecting the specific concepts that will be disected and your feedback would be most useful; what are the concepts that you think are in need of clarifications?

We are open to fresh ideas and new speakers, so if you think you can astonish the competition community with a brilliant speech on any particular concept, please send us a one pager with your ideas. Depending on what we get, we might invite those with the best ideas to deliver a brief Ted-like talk (note that candidates will be selected “on the merits”; i.e. on the basis of wholly subjective and undisclosed criteria);

-Our non-business model consists in making the conference accesible to everyone by offering the service for free. If you want to be one of the sponsors that makes this possible, please shoot us a line;

-It will be, by far, the best Chilling Competition conference to date;

-Yes, yes, there will be drinks afterwards 

More info on the programme, registration, etc. will follow in September…

Written by Alfonso Lamadrid

16 July 2018 at 11:29 am

Posted in Uncategorized

Conferences (including the theme of the 2nd Chillin’Competition conference)

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canseco-press-conference

We have already decided on the topic of the next Chillin’Competition conference. The common thread will be “Neutrality Everywhere“. The dates are yet to be determined (not likely to happen until after the summer). If any of you have original ideas (for a panel, for a paper you would like to present, for sponsors or even for a venue), please send them our way!

And speaking of conferences:

On 27 May the Brussels School of Competition will host a morning briefing on the very timely topic of mobile network consolidation. For more, see here.

On 2 June there wil be a couple of most interesting events in Brussels. First, Global Competition Review, Baker Botts and Shearman&Sterling will be holding the GCR Live 4th Annual IP and Antitrust event, and have managed to come up with a great program. That same day, a bit later, the Academy of European Law (ERA) will host a seminar under the title: What’s New in Art 102 TFEU? Latest Issues on Price and Non-price Related Conduct: for more info, see here.

On 8 June the GCLC and UCL have organized a conference under the title Competition Policy at the Intersection of Equity and Efficiency Honoring the Scholarship of Eleanor Fox. The programme is available here.

On 10 June Pablo will follow my footsteps 🙂 and will address the Association of European Competition Law Judges which this time is meeting in Madrid. The conference will address the competition – IP interface.

On 13 June Concurrences will host the New Frontiers of Antitrust Conference in Paris. The conference has been promoted with a teaser-interview with Nicolas Petit, available here.

Also on 13 June there will be a conference on Competition Law and Competitiveness in the EU at the Reform Club in London featuring an impressive speaker line-up too.

On 14 June the College of Europe will hold the annual symposium organized by the ELEA (European Law and Economic Analysis) students. There will be a panel on geo-blocking that will feature big names such as Thomas Kramler and Mike Walker and small names like Pablo 😉

The big global event on 23 June will be the British referendum my intervention in a symposium titled  Online platforms, Big Data and privacy: What role for competition policy?. It will be hosted by the Centre for Studies on Media Information and Telecommunication (SMIT) & the Brussels Centre for Competition Policy (BCCP) at Vrije Universiteit Brussel (VUB), Brussels. Those of you interested can download the program here.

On 4-8 July I will also be teaching at the College of Europe’s Summer Course on Competition Law taking place in Bruges. For more info, click here. I will also be lecturing at the College of Europe’s Summer Competition Law School for Chinese officials, but I fear you may not be eligible for that one…

And during 2016/2017 (and beyond) Pablo will be… Actually, he can tell you himself.

Written by Alfonso Lamadrid

19 May 2016 at 10:44 am

Posted in Uncategorized

Self-Preferencing: Yet Another Epithet in Need of Limiting Principles

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do yourself a favour

‘Self-preferencing’ is the buzzword of the day. This concept was discussed at length in the Special Advisers’ Report and is now being explored in earnest by national competition authorities around the EU. We have heard news about the Dutch Authority exploring Apple’s alleged favouring of its own app. Right before the break, the Italian authority announced the opening of an investigation against Amazon and its practices.

This flurry of enforcement activity, yet another sign of the turning tide, cannot surprise an attentive observer. Self-preferencing is a powerful rhetorical device: it provides authorities with the key to potentially countless investigations and allows them to monitor closely the activity of large firms in the digital arena. More importantly, it is through this device that they can adopt wide-ranging remedies changing, potentially in fundamental ways, some business practices.

The genius of self-preferencing as an epithet is that it turns the most pervasive and the most banal of practices into prima facie violations of Article 102 TFEU. Vertical integration is, indeed, pervasive in the digital (and the analogue) world. And instances in which vertically-integrated firms treat their affiliates more favourably than their rivals are equally pervasive. Just stroll around your local supermarket after reading this post.

Self-preferencing may become the tool to achieve ‘common carrier antitrust’ (that is, a state of affairs in which vertically-integrated firms are expected to comply with perfect neutrality obligations vis-a-vis customers and suppliers). This is an idea I explored previously on the blog.

As I was reflecting on the above, and on the dangers of enforcement-by-slogan, I was reminded of Areeda’s classic piece on essential facilities. In that piece, Areeda warned against an epithet-based approach, emphasising that it tends to lead to the expansion of a doctrine ‘to the limits of its language’, ultimately resulting in outcomes that are intellectually indefensible (Areeda’s choice of words was more colourful and perhaps more effective, but I guess you get the point).

If arguments revolving around self-preferencing are going to play a fundamental role in the coming years, it makes sense to ask some hard questions by reference to first principles. And it is also important to face the consequences of certain choices.

Self-Preferencing has never been seen as a concern, but as an expression of competition on the merits

It may be hard to believe, but there was a time when vertical integration and, by the same token, firms favouring their affiliates were not deemed problematic in themselves. They were not considered suspicious conduct deserving close scrutiny but the natural manifestation of the competitive process.

One of my favourite examples of the traditional approach dates back from the days when people smoked. In Tabacalera v Filtrona, the latter firm challenged a self-preferencing decision by the former (at the time, the tobacco monopoly holder in Spain): Tabacalera had decided to favour its own affiliate for the production of cigarette filters.

The Commission explained in its press release that this form of self-preferencing was not in itself an ‘abnormal act of competition’. In fact, few things are more normal than a firm relying on its affiliate to meet its own needs for a particular product (or favouring it when in doubt).

A second example (another one of my favourites) along the same lines is provided by the Guidelines on non-horizontal mergers. Again, self-preferencing is not presented in the document as something justifying remedial action, in and of itself, after a merger. It is instead presented – and was examined in individual cases – as an expected outcome of  a vertical merger, which may be problematic only where certain circumstances are met.

Key takeaway: I guess the main message here is that self-preferencing cannot be seen, in and of itself, as a departure from competition on the merits. Questioning this practice, in essence, is tantamount to questioning vertical integration and the rationale behind vertical integration – and I do not think anybody is ready to suggest (or at least not yet) that vertical integration is inherently bad, or presumptively bad.

Thus, if self-preferencing is going to dominate enforcement, we need to think carefully about the legal conditions under which it is deemed unlawful (i.e. the legal test) and the rationale behind such conditions. Which takes me to my next point.

Indispensability: the hard question that cannot (and should not) be avoided

I have explained many times on the blog that I am not interested in the outcome of individual cases. What matters, in my view, is the analysis, and how the analysis relates to the applicable case law. And I noted, when I read the Google Shopping decision, that none of the hard questions about the legal status of self-preferencing were addressed.

The Commission never spelled out in the decision the legal test against which the lawfulness of self-preferencing was assessed. It merely explained that Article 102 TFEU can apply to leveraging practices. This is not only correct but wholly uncontroversial. The problem is that (i) it is not a legal test and (ii) fails to address any of the issues.

If you have not done so, take a look at paragraph 334, which, according to the decision, provides the case law underpinning intervention. The Commission refers to several cases in footnotes 350 and 351. A cursory look at these judgments shows that there are virtually as many judgments as there are legal tests:

  • CBEM-Telemarketing: in this case (the first to be mentioned by the Commission), the legal test requires evidence of indispensability (the reference to indispensability is explicit in the judgment, a point expressly confirmed in Bronner).
  • Tetra Pak and Microsoft (Media Player): as the law stands, tying is prima facie unlawful under Article 102 TFEU – the practice is prohibited in and of itself (bearing in mind that it is always possible for a firm to rely on Murphy/Intel to rebut the underlying presumption that the practice is capable of restricting competition).
  • TeliaSonera: a ‘margin squeeze’ is only prohibited where it has, or is likely to have, anticompetitive effects.

As you can see, the outcome in Google Shopping is perhaps correct. The difficulty is that we do not know which of the above three legal tests was the applicable one in the case, as the question was never tackled as such in the decision.

The uncertainty in this sense will have to be addressed, sooner or later, by the EU courts. It cannot be dismissed simply by arguing that leveraging has in the past been found to be abusive. For the same reasons, the question of whether indispensability is a legal condition in some, or all, self-preferencing cases will have to be addressed.

If you ask me: I always say that Google Shopping is just a re-run of Commercial Solvents: a firm, following a decision to vertically integrate, engages in a raising rivals’ costs strategy. But bear in mind Commercial Solvents, like CBEM-Telemarketing, required indispensability (and for good reasons).

Key takeaway: Perhaps it makes sense to depart from Commercial Solvents. Perhaps the reasons behind the introduction of the indispensability requirement in that case (and in CBEM-Telemarketing) are not compelling anymore. Perhaps one should not require indispensability in the specific circumstances of the case (for instance, it makes sense not to not to require indispensability in TeliaSonera/Slovak Telekom scenarios, as I explained here). 

But these questions have to be addressed explicitly. Avoiding the inevitable for a while can only lead to uncertainty and inconsistencies in the case law.

The need for a robust analysis of anticompetitive effects

One could argue that, so long as we can show that self-preferencing is potentially a source of anticompetitive effects, the above discussion is largely irrelevant. This is a very reasonable position to take. There is only one problem: it all depends on how anticompetitive effects are defined, and how they are assessed in practice.

This is a question that keeps me busy – and to which I devoted my talk at the last Chillin’ event. As I explained then, if the threshold of effects is low, pretty much any behaviour would be in principle prohibited, and would be treated, in practice, just like ‘by object’ conduct. The requirement to show anticompetitive effects would be a mere formality.

If we understand anticompetitive effects to mean ‘any competitive disadvantage’, self-preferencing will be, always and in any circumstance, prima facie abusive. Complaints about self-preferencing are, in fact, complaints about the affiliate receiving a competitive advantage.

We would face the same situation if an authority were able to discharge its burden of proof by showing that anticompetitive effects (however defined) are plausible. Such a low threshold would be met in the vast majority of cases. After all, the reason some practices deserve scrutiny is because they are deemed a plausible source of anticompetitive effects.

I believe it is possible to infer from the case law what is meant by effect. However, there seems to be a disparity between the case law and the practice of competition authorities. My work over the years has taught me that authorities have a tendency to equate any competitive disadvantage with anticompetitive effects, and tend to prefer to set the threshold of effects at the level of plausibility.

This disparity will inevitably arise in self-preferencing cases. And, like the indispensability issue, the question of what we mean by an anticompetitive effect will have to be tackled directly and in a clear and meaningful way.

Key takeaway: Saying that self-preferencing is abusive where it is a potential source of anticompetitive effects does not solve any of the problems discussed above. Unless the notion of effects is defined, considerable uncertainty, and considerable scope for opportunism, will remain.

Written by Pablo Ibanez Colomo

24 April 2019 at 3:08 pm

Posted in Uncategorized

EU Judicial Review: Major Antitrust Implications of Recent State Aid Cases

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Blinkers

We competition lawyers often wrongly approach our discipline in isolation from the wider context in which it is applied. This is also true when it comes to judicial review. We tend to forget that antitrust is only a fraction of what the EU Courts and EU judges do, and that what they do in other areas might also have major implications in ours.

A perfect illustration of what I’m saying lies in two State aid judgments: C‑300/16 P, Frucona Kosice, and the very recent T-865/16, Fútbol Club Barcelona v Commission.

Both cases relate to how the Court approaches judicial review of complex economic assessments when the burden of proof is on the Commission. This, as you know, is an issue common to antitrust, mergers and State aid, and also to other areas of EU law. As you also know, in these cases the EU Courts apply a “manifest error of assessment” standard. Pursuant to the Tetra Laval formulation (which GC President Jaeger has called “the forgotten paragraph”), in these cases “the Court must establish “not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it”.

The first case is Frucona Košice.  Here, the CJEU clarified that “the information ‘available’ to the Commission includes that which seemed relevant to the assessment to be carried out in accordance with the case-law (…) and which could have been obtained, upon request by the Commission, during the administrative procedure” (71). The CJEU then observed that the Commission had “failed to obtain” (80) “all the relevant information” (81) and confirmed the annulment of the Decision.

I had already briefly discussed this case on the blog some time ago, in relation to how the Commission intended to apply the lessons from the Intel Judgment (see here). As I said then, the Frucona Judgment confirmed that the Commission cannot just sit and wait for the dominant company to bring all the necessary evidence to establish a point at a stage where the burden remains on the Commission (for competition law purposes, that would be at the state of identifyinga prima facie restriction under 101(1) or at the stage of ascertaining “intrinsic capability” to restrict competition within 102). Remember the difference between the burden of proof and the evidential burden? If not, click here.

All this was confirmed and expanded on just a few days ago in the FC Barcelona v Commission case, where the Court annulled a decision declaring that certain Spanish fiscal rules granted State aid to some football clubs (the Court’s press release available here). The Judgment (not yet available in English, can be found here).

Specifically, the GC ruled that when the Commission is confronted, during the administrative proceedings, with evidence capable of leading to “doubt” as to a relevant aspect of the case, it is then obliged to undertake measures of enquiry. Failure to do this can result in the Commission not meeting its burden of proof, which in turn might lead to the annulment of the Decision. This Judgment is based on…the Frucona Košice precedent.

In a nutshell:

-FC Barcelona argued that the Commission’s decision had not properly assessed one aspect of the case (the idea was that it had assessed a tax scheme looking only at the nominal tax rate and not to other constituent elements that cannot be dissociated from the tax scheme), and that, had it done so, it would have come to a different conclusion. FC Barcelona invoked the Commission’s duty to conduct its investigation actively, fully and impartially, seeking to gather, by means such as RFIs, any information available to it, including both inculpatory and exculpatory evidence (para. 38).

-The Commission argued that it had based the decision on the information submitted to it by the Spanish authorities and that no additional measures of enquiry were necessary. It contended that the applicant’s arguments were “simplistic and possibly erroneous” and that in any event they had not been put forward by the applicant during the administrative proceedings (para. 41);

-The Court observed, however, that “the Commission, who bears the burden of proof (…) enjoyed the possibility of requesting, within the limits of its investigatory obligations within the administrative proceedings, any information necessary to conduct its assessment” (para. 59, citing in turn para. 71 of Frucona Košice). The Court notes that the information contained in the decision did not exclude the possibility that the applicants’ argument may have been well founded (paragraph 60 in fine). In paragraphs 66 and 67 the Court finds that at the time of adopting the contested decision it had at its disposal elements that “should have led it to doubt” its approach, and that since these elements were not addressed the EC failed to meet its burden of proof. This means that the evidence to be put forward by the company must not be sufficient to prove a point, but simply to lead to doubt.

-The Court also addresses the Commission’s point that the applicant had not raised the necessary arguments during the administrative proceedings, noting that they had been raised by another party (Real Madrid; ironically, in a way Real has won the case for Barcelona…), and that therefore the Commission failed to establish its case having regard to the data at its disposal at the time of adopting the Decision.

-The GC dismissed a parallel application by another applicant in exactly the same situation, but which failed to raise this legal argument (Athletic Bilbao, in case T-679/16).

The bottomline(s):

  • The Courts recognizes the Commission’s ample powers and will often defer to its assessment on substance, but for this trust to exist the Commission will at the very least need to show that it has not avoided any relevant issues, and that it has pursued all relevant leads.
  • Some key members of the EU Courts had also signalled some of this. As noted by Vice-President Van der Woude, cases like Cartes Bancaires or Intel raise questions for which answers “can be found in the burden of proof that rests upon the Commission pursuant to Article 2 of Regulation 1/2003”. Read that in the context of the Judgments discussed above and connect the dots.
  • These developments are here so stay. It won’t be difficult for the Commission to continue to win cases if it incorporates this logic into its day-to-day. If that does not happen, we are likely to witness a series of annulments based on this logic. This, of course, is assuming that lawyers understand the underlying logic, make sure to submit the relevant info during the administrative proceedings and raise the issue in Court. [My bet is that I will be making a few future cross references back to this prediction]

 

Written by Alfonso Lamadrid

18 March 2019 at 6:31 pm

Posted in Uncategorized

Yet another presentation on competition and big data

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Picture1

My silence on the past few days has to do with several open fronts thanks to the Commission’s bad habits of summertime desk cleaning, but also to my bad habits of devoting  non-work time to conferences and talks (my only consolation is that Pablo has recently been by far the most active speaker in Chillin’ Competition’s flying circus).

-Some of you have asked for the presentation I used at the VUB’s very interesting debate on big data and competition law; here it is:

Competition-big-data_lamadrid 23 June

You know my views from quite a few previous posts (all links appear at the end of the ppp). The main addition this time was to discuss the joint French-German report issued last May which essentially makes general conjectures about how standard theries of harm could apply to big data (like they apply to any other asset) if the right facts were to arise in a given case. In sum, nothing new under the sun.

The change of attitude on the part of competition authorities is nevertheless remarkable. When I spoke at the EDPS closed-door workshop at the European Parliament in one of the first discussions on this matter my views were perhaps a bit anti-climatic for an audience pre-disposed to use competition law to tackle non-competition issues. But I did -logically- have the support of the only authority in the room, DG Comp. Now, however, we see not only the German Facebook case and the French-German report giving further visibility to a non-issue, but I also hear that some within DG Comp are pushing to do more on this front. That’s disconcerting.

-None of you have asked for the presentations I have used the past two Fridays at the College of Europe Summer Courses (where for the 4th year in a row I’ve lectured on Antitrust Procedure and Article 106). Lack of interest has never precluded me from posting stuff here, but since the two presentations are in Mandarin I’ll spare you the pain…

Written by Alfonso Lamadrid

12 July 2016 at 6:46 pm

Posted in Uncategorized

(Competition) Food for Thought

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lettuce

In the past months, our savory series of posts on food and competition law had been kept in the freezer.

Thanks to the French Competition Authority (“FCA”), it is our pleasure today to defrost this category of posts.

In Groupe coopératif Agrial/Bakkavör (a merger case), the FCA concluded to the existence of a product market for salads, distinct from the product market for other fresh vegetables.

But this is not all. The FCA further delineated the market on the basis of the “technology“(sic!) applied in this sector. It accordingly distinguished between salads of 1st category (i.e. fresh, raw, unwashed, unpeeled) and salads of 4th category (i.e. fresh, raw, washed, peeled).

The bottom-line: there’s technology everywhere.

PS: thanks to A. Ronzano for the pointer.

Written by Nicolas Petit

6 May 2013 at 3:12 pm

Posted in Uncategorized

European Commission prohibits Ryanair/Aer Lingus deal

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Last Wednesday the Commission confirmed that it has decided to prohibit -for the second time- the proposed merger between Ryanair and Aer Lingus merger (click here for the press release). This is the fourth prohibition decision adopted under Commissioner Almunia, and the 24th in the history of EU competition law.

The decision has not yet been published. We had assumed that while we waited for it we could at least report on Michael O’Leary’s (Ryanair’s CEO) reactions. However, Mr. O’Leary has not made any public statements of the kind that we were expecting (remember his analogy between the European Commission officials and North Korean economists?  🙂

Ryanair has issued a press release in which it argues that its offer “was supported by an historic and unprecedented remedies package that included not one, but two upfront buyers (BA/IAG & Flybe) to take over approximately half of Aer Lingus’ short-haul business (…) The transfer to these upfront buyers of Aer Lingus’ business on the 46 crossover routes identified by the EU Commission, together with the relevant slots, aircraft, personnel and branding, was ensured by binding, irrevocable commitments by those upfront buyers including Board approvals”. In Ryanair’s view, “[t]he history of the EU’s treatment of Ryanair’s two offers for Aer Lingus conclusively proves that this prohibition is a “political” decision to pander to the vested interests of the Irish Government (a minority 25% shareholder in Aer Lingus) and is not one that is based on a fair and reasonable application of EU competition rules or precedent airline merger approvals in Europe”.

We have no clue on whether the allegations over the political motivations of the decision are founded or not. But politics aside, this case resuscitates some tricky substantive/institutional questions. The nature and scope of the remedies proposed by Ryanair was indeed pretty substantial, and arguably unprecedented (Ryanair had even pledged to give 100 million to Flybe to ensure its sustainability) so, query:

Are EU merger control rules on when an up-front buyer is a suitable one sufficiently clear? What discretion should the Commission enjoy in this regard? Ryanair has announced that it will appeal the decision before the General Court, so we should expect to have some answers to these question soon.

Written by Alfonso Lamadrid

1 March 2013 at 4:51 pm

Sunday Politics

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A few days ago in Brussels, 26 Member States (“MS”) of the EU layed the foundations of a still-to-be drafted European Treaty.

Amongst the key measures to be included in the Treaty, a “golden rule”  which will force MS to introduce in their Constitution the rule that budget deficits should not exceed 0.5% GDP. The European Court of justice will verify MS compliance with the golden rule.

With this forthcoming European measure, Sarkozy can put his main rival to the presidential election, François Hollande, into a corner. A few months ago, when the government tried to impose a golden rule domestically, the socialist candidate had proferred criticism. At the time, the socialists announced that they would not back a change of the Constitution to this effect. For those not versed in French constitutional law, amendments to the Constitution must be voted by a majority of 3/5 of the aggregate votes of both the Senate and the National Assembly (or by referendum). Currently, the National Assembly is dominated by the right wing and the Senate by the left wing…

But now that the measure has been endorsed by 26 MS, and that it will be imposed by a European Treaty, there’s little the socialists can criticize unless they want to be depicted as UK-Cameronesque politicians. No wonder why the socialists have been voiceless over the past few days. Sarkozy 1 – Hollande 0.

On closer analysis, the socialists’ “oppositional” options appear very meager. Sure, the socialists could be tempted to criticize the Treaty as insufficiently ambitious  (e.g., on eurobonds or on the ECB mandate), and use this a a reason to refuse the ratification of the Treaty. Back in 2005, several socialists heavyweights (notably former Prime Minister Laurent Fabius) had actually used such rethorics to stand against the EU constitution. But the value of the argument is limited, given the reluctance of many other Member States (e.g., Germany) to more ambitious reforms.

The socialists could also play the good old nationalistic anthem. Challenging transfers of sovereignty to Brussels often has traction on the French political scene.  My prediction: it is a matter of days before the Montebourg, Mélenchon, and Chevènement of this world announce that the forthcoming Treaty will rip off France’s fiscal sovereignty. I however doubt that Hollande, who is often presented as the spiritual son of Delors, could credibly side with them.

At any rate, what is close to certain is that the ratification procedure will again tear the socialist party apart. Sarkozy and his European colleagues just managed to revive the divisions that have plagued the socialist party before the referendum on the European Constitution. And with all this, I suppose that Hollande prays for a slow drafting process and a late ratification procedure, well after the presidential election of May 2012. Sarkozy 2 – Hollande 0.

Now here’s what could be the hat trick for Sarkozy. A quick Treaty drafting + ratification before May 2012 is unrealistic. But this does not prevent Sarkozy to launch a debate on the procedure to be followed for ratification during the presidential campaign, in a bid to expose the socialists’ internal divisions. There are indeed many procedural options on the table and experience suggests that they often give rise to fierce discussions in French politics. As hinted above, international treaties are normally subject to ordinary legislative procedure (Article 53 of the Constitution). Yet, if they entail amendments to the Constitution, an additional consultation must take place. The President must either request  approval of the French citizens by Referendum, or, in the alternative, request the Senate + National Assembly to back the proposed modifications under a 3/5 majority rule (Article 89 of the Constitution). And even if the Treaty does not entail a change of the Constitution, the President can still hold a referendum on the Treaty, provided it has an “influence” on French institutions (Article 11 of the Constitution). A sovereignist left winger, Chevènement, just demanded the organisation of a referendum.

To date, Sarkozy still lags behind Hollande in the polls. But the shape of events to come is unpredictable, and the EU summit just gave Sarkozy a number of good cards to play.

PS1: Sarkozy could even score a 4th goal. With worrying threats on the French “triple A” rating, he could seek to anticipate on the future EU obligation, and already introduce the golden rule in the Constitution before the presidential election…

PS2: I was astonished by the lack of press information on the content of the agreement crafted in Brussels. A usual with EU affairs, I found a very good description of the agreement on the excellent blog of Jean Quatremer.

PS3: With this post, I am a little far from the core market of this blog. I even take a risky stint at French constitutional law. I thus apply for leniency with our readers, and already present my apologies for potential inaccuracies, errors, etc. The thing is that  “we are just as politics geeks and fervent EU supporters as we are competition law geeks”  like Alfonso said the other day, and I could not resist writing something on the EU summit.

Written by Nicolas Petit

11 December 2011 at 8:56 pm

Posted in Uncategorized

The end of the US Microsoft case

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13 years ago the US Department of Justice together with several States filed a suit against Microsoft that marked the beginning of what still remains as the most significant case in contemporary antitrust, and one that led to many changes in the way we approach high-tech markets, and antitrust enforcement in general.

The history of the US v. Microsoft antitrust battles is too rich in details to be summarized here, but those interested in a great brief explanation should watch this video in which Phil Malone (who was one of the leading prosecutors for the Antitrust Division -and also my Professor at Harvard Law School- makes this long story short). 

But now more than ever, all of that pertains to history. The oversight mandated by the 2001 settlement (reached right after the DC Circuit Corut reversed part of the District Corut´s decision which had ruled for the Governmment) will expire on May 12th. However, the last oversight hearing before Judge Colleen Kollar-Kotelly occurred on April 27th and marks, in practice, the end of the story. In the words of Judge Kollar-Kotelly, the effective end of the Microsoft case “will close an important chapter in the history of antitrust law“.

I missed this in the selection of news that had taken place during our days off, and I have, very rightly, been “reprehended” for this omission by Craig Farringer, Assistant Attorney General for the District of Columbia, and one of the members of the so-called “California Group”.  (as some of you will recall, several States decided in November of 2001 that they did not want to accept the settlement proposed by Microsoft; this lead to a full evidentiary remedy hearing which resulted in the California Group Final Judgment).  Craig Farringer (who also had extremely nice words for this blog, for which we´re grateful) has sent us a picture of some California Group lawyers and experts taken moments after the status conference outside the Prettyman courthouse in Washington. Here it is:

 (Pictured from left to right is Adam Miller of California, the now famous technical expert Craig Hunt, Layne Lindebak of Iowa, Stephen Houck (who signed the original complaint lodged by the States in 1998), economics expert Chuck Clarke, and Craig Farringer).

Our congratulations to all those who worked on the case, be it for the DOJ, for the States, for Microsoft or for other third parties involved in the case.

And, by the way, on this side of the Atlantic the General Court has scheduled for May 24th the hearing on Microsoft’s appeal against the Commission´s findings of non-compliance with the 2004 decision, which led to an additional 899 million euro fine.

Written by Alfonso Lamadrid

2 May 2011 at 4:20 pm