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Competition Rules in Banking and Financial Services
Financial services, including banking and payments, have been one of the preferred areas of enforcement on the part of the European Commission in recent times. The cases that have taken place in this area have moreover raised a variety of peculiar challenges and issues on which we have commented on this blog and that cannot be found in other sectors: there have been two sector enquiries, landmark “object-not object” cases (Cartes Bancaires; see here), effects-cases including a 101(3) assessment (Mastercard; see here), various commitment decisions (see here), infringement decisions related to 101 – including cartel decisions imposing record-breaking fines in hybrid settlement scenarios- as well as to 102 (i.e. the Standard & Poor’s and Thomson Reuters cases dealing with the issue of access to information necessary for securities trading). All very rare as you can see, and this in only a teaser.
Those interested in a comprehensive discussion on these issues should attend the upcoming ERA’s Workshop on Application of EU Competition Rules in Banking and Financial Services, to be held in Brussels on 3 June. It will feature three top-notch speakers, and then me.
The programme is the following:
– 14:15 Competition issues in the cards and e-payments sector
Alfonso Lamadrid (Garrigues); Cédric Nouel de Buzonniere (DG Competition’s Payment Systems Unit)
– 15:00 Questions and discussion
– 15:30 Trading platforms and competition
James Modrall (Norton Rose)
– 16:00 Questions and discussion
– 16:30 Coffee break
– 17:00 Competition issues with benchmarks and indexes
Viktor Bottka (European Commission’s Legal Service)
To register, click here.
Negotiations (and other non-legal abilities) in Antitrust Practice
Two days ago I read the obituary of Roger Fisher -Emeritus Professor at Harvard Law School and director of the Harvard Negotiation Project. Fisher was a co-author of one of the best-selling books in the art of negotiating: “Getting to Yes, negotiating agrement without giving in“. Reading this book was one of the requirements of the Harvard negotiation program to which I devoted 3 intense weeks of my LLM’s winter term.
Skimming again through its pages last night I remembered the paper that I wrote also as part of the requirements for the negotiation program; I chose to do it about the specific features of the negotiations that take place in the field of antitrust (as is the case with other competition lawyers my mindset is programmed to think mainly about one subject…). I would post it here, but my only digital copy of that paper was lost under very peculiar circumstances that would merit an ad hoc post.
Anyway, let’s cut to the chase:
Antitrust practice nowadays requires inmense negotiation skills. In many cases, and after the law plays its role, the final outcome is determined pursuant to a negotiation. Moreover, quite often practitioners and authorities don’t limit themselves to the application or establishment of liability principles, but rather negotiate in the shadow of the principles that regulators and courts may be expected to apply (for some material about negotiating” in the shadow of the law”, click here or here). In other words, very often a negotiation is what determines the success or failure of the project or case at issue.
In spite of the increasing prominence of negotiated solutions in antitrust enforcement (think of cartel settlements, settlements in actions for damages, commitment decisions in abuse of dominance cases, or the design of remedies, among others), awarenesss about the importance of negotiation skills in our profession is still scarce. To be sure, this attention deficit is not exclusive to negotiation abilities; the same happens with other non-legal abilities that in practice are as important -or much more- than a thorough knowledge of the law (notably writing).
Law firms often attempt to resolve the issue through one day talks and other brief and not-so-serious means, but I’m not sure of whether that’s enough. Universities and postgraduate centers would be providing a great service should they focus on these extra-legal abilities.
Don’t get me wrong. I don’t think that doing a course/seminar on negotiation or on many other skills is going to radically change anyone’s life. Negotiation skills (like salsa dancing, basketball playing, maths, and almost anything) are to some extent natural abilities. In fact, the best negotiators I’ve ever seen in action act by instinct or experience and would probably laugh at the idea of “studying” about it. Moreover, in a field of repeated interactions like ours, building the necessary trust from your counterparts (authorities or competitors) takes time. In spite of it all, it is a fact that most skills are perfected upon reflection and training.
In order to contribute to filling this void, Nicolas is devising (and trying to sell) an executive training program for lawyers in order to deal precisely with all these non strictly legal skills.
Any suggestions you may have about it would be most welcome!
Tougher Article 81(1) EC, Laxer Article 81(3) EC? – ECJ, C‑501/06 P, GlaxoSmithKline Services Unlimited v. Commission, 6 October 2009
11 years ago (!), in the good old times of the notification procedure, Glaxo had notified to the Commission its ‘General sales conditions of pharmaceutical specialities to authorised wholesalers’ with a view to obtaining a negative clearance or an exemption. On 8 May 2001, the Commission (i) found that the notified agreement infringed Article 81(1) EC; and (ii) refused to grant an exemption pursuant to Article 81(3) EC.
Glaxo challenged this decision before the CFI. In an unexpected judgment, the CFI annulled the second part of the Commission’s decision that refused to grant an exemption.
Glaxo, however, lodged a further appeal before the ECJ, seeking to obtain also annulment of the first part of the Commission’s decision that had deemed the agreement unlawful pursuant to Article 81(1) EC. The Commission lodged a cross-appeal, asking the court to set aside parts of the judgment of the CFI (notably those viewing the refusal to grant an exemption unfounded).
The judgment handed down by the ECJ yesterday in this case exhibits two points of particular importance. First, it delivers an authoritative interpretation of the concept of a “restriction by object” under Article 81(1) EC (I). Second, it clarifies the burden of proof, in terms of process and substance, under Article 81(3) EC (II).
I. On the concept of a “restriction by object”
Glaxo’s contended that, contrary to the CFI’s view, the agreement was not unlawful pursuant to Article 81(1) EC. In its judgment the CFI had opted for an innovative case-by-case appraisal of the concept of restriction by object. According to the CFI, there was no such thing as a predefinite list of restrictions by object. A restriction can only be deemed a restriction by object upon analysis of its “legal and economic context“. On this basis, the CFI found that the impugned restriction of parallel trade was not restrictive by object (absent obvious proof of consumer harm – parallel traders pocket in the price differential), but was restrictive by effect. Glaxo agreed with the absence of a restriction by object, but contested the existence of a restriction by effect. The Commission, by contrast, challenged the view that there was no restriction by object.
The first important point which the ECJ makes is to reject as erroneous the CFI’s contention that a restriction by object hinges of the identification of consumer harm:
“62 With respect to the Court of First Instance’s statement that, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as it may be presumed to deprive final consumers of the advantages of effective competition in terms of supply or price, the Court notes that neither the wording of Article 81(1) EC nor the case-law lend support to such a position.
63 First of all, there is nothing in that provision to indicate that only those agreements which deprive consumers of certain advantages may have an anti-competitive object. Secondly, it must be borne in mind that the Court has held that, like other competition rules laid down in the Treaty, Article 81 EC aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such. Consequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price (see, by analogy, T-Mobile Netherlands and Others, cited above, paragraphs 38 and 39).
64 It follows that, by requiring proof that the agreement entails disadvantages for final consumers as a prerequisite for a finding of anti-competitive object and by not finding that that agreement had such an object, the Court of First Instance committed an error of law”.
The ECJ thus quashes the CFI judgment on this point. In so doing, the ECJ sticks to a textualist reading of Article 81(1) EC: The wording of Article 81(1) EC does not talk of consumer harm. The appraisal of the restrictive object of an agreement must thus be established on the basis of”the content of its provisions, the objectives it seeks to attain and the economic and legal context of which it forms a part“, and only on this basis.
II. On the burden of proof under Article 81(3) EC
Turning, subsequently to the Commission’s contention that the CFI misapplied the case-law in quashing its decision’s refusal to grant an exemption, the ECJ makes a number of interesting points.
First, as to the burden of proof under Article 81(3), the ECJ upholds my analysis the iterative analysis process:
“82 The Court notes, first, that in paragraphs 233 to 236 of the judgment under appeal, the Court of First Instance referred to the case-law, principles and criteria governing the burden of proof and standard of proof required in relation to requests for exemptions under Article 81(3) EC. It correctly stated that a person who relies on that provision must demonstrate, by means of convincing arguments and evidence, that the conditions for obtaining an exemption are satisfied (see, to that effect, Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 45).
83 The burden of proof thus falls on the undertaking requesting the exemption under Article 81(3) EC. However, the facts relied on by that undertaking may be such as to oblige the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged”
Second, the Court seems to relax, to a certain extent, the conditions under which parties may be able to prove in substance that they meet the conditions for an exemption (to date, those conditions, as enshrined in the Article 81(3) Guidelines, are almost impossible to meet in practice). In its cross appeal, the Commission argued that “that the Court of First Instance committed an error of law in finding that it is sufficient that an undertaking wishing to obtain an exemption under Article 81(3) EC show that it is probable that gains in efficiency may occur”.
In this context, the ECJ notes that:
“92 … in paragraph 247 of the judgment under appeal the Court of First Instance rightly observed that, in order to be capable of being exempted under Article 81(3) EC, an agreement must contribute to improving the production or distribution of goods or to promoting technical or economic progress. That contribution is not identified with all the advantages which the undertakings participating in the agreement derive from it as regards their activities, but with appreciable objective advantages of such a kind as to compensate for the resulting disadvantages for competition (see, to that effect, Consten and Grundig v Commission, cited above, p. 348 and 349).
93 As the Advocate General observed in point 193 of her Opinion, an exemption granted for a specified period may require a prospective analysis regarding the occurrence of the advantages associated with the agreement, and it is therefore sufficient for the Commission, on the basis of the arguments and evidence in its possession, to arrive at the conviction that the occurrence of the appreciable objective advantage is sufficiently likely in order to presume that the agreement entails such an advantage.
Furthermore, at §94, the ECJ indicates that the standard of proof hinges on the “balance of probabilities (51/49), rather than on a proof “beyond reasonable doubts” standard:
“The Court of First Instance therefore committed no error of law in paragraph 249 of the judgment under appeal in holding that the Commission’s approach may entail ascertaining whether, in the light of the factual arguments and the evidence provided, it seems more likely either that the agreement in question must make it possible to obtain appreciable advantages or that it will not”.
Finally, the Court clarifies a number of issues related to Article 81(3) EC but which, in my opinion, are of lesser relevance.
As surmised by Alain Ronzano a few days ago, this case holds the potential to influence the ongoing verticals review, where the Commission proposes an inversion of the traditional burden of proof. Here, the ECJ relaxes the conditions for the applicability of Article 81(3) EC and, indicates that restrictions by object require a careful appraisal. Whilst it does not follow the ambitious CFI proposition that a hardcore restriction implies proof of harm to consumer, it nonetheless indicates that a careful prior assessment must be done (my point a few days ago). As far as parallel trade is concerned, the consequence of this judgment is very simple: the “no consumer harm defence” invoked by drug manufacturers to justify their anti parallel trade strategies does not disqualify a finding of restriction by object (this argument hinges on the view that fact that parallel traders pocket-in the margins, and that by virtue of price regulations, parallel trade does not lead to lower prices, and thus has no beneficial effect on consumers).
In brief, a tougher Article 81(1) EC and a laxer 81(3) EC .
(Image possibly subject to copyrights. Source here)
Two-sided markets in merger and abuse of dominance cases
When you have a 8 9 10 to 9 ? job it’s often quite hard to do things on the side, and, between us, it may not make much sense that many of them are work-related. Only this month, and in addition to ordinary work -which included 5 Court deadlines- and blog posting, I had to lecture in Madrid about 102 (intro, tying and refusal to deal in 3 hours), participate in the panel on interop at AIJA’s antitrust and tech conference on a Saturday morning, finish and present a paper on evidence in cartel cases, and lecture -next Friday- for 6 hours at the Brussels School of Competition on procedure. And since I thought it would be the quietest month in sight, I took a week off for my postponed Christmas holidays (not very smart, no). Overall I spent almost as much times in planes (11 flights this month) as in the office, and had to compensate at the cost of sleeping hours.
Why should you care about all this? You shouldn’t; this is all to explain why during this whole month I kept on swearing myself that -blogging aside- I would refuse any non-work projects for the next few months. Well, said and not done:
On 3 April ERA will be hosting an afternoon workshop on Two sided markets in merger and abuse of dominance cases here in Brussels. They couldn’t have chosen a more interesting topic, so I gladly accepted to chair it. Not only is the subject matter a fascinating one, it will also be dealt with by two great panellists: Thomas Graf (Cleary Gottlieb) and Lars Wiethaus (E.CA Economics).
The program is available here: Two Sided Markets in Merger and Abuse of Dominance Cases (ERA)
IEB Postgraduate Competition Law Course (26th edition) (in Madrid and online)
The 26th (!) edition of the EU and Spanish competition law course that I co-direct at the IEB in Madrid will run from January to March 2023. We are now accepting applications.
Like last year, the course will adopt a hybrid format (attendees can participate either in person or online). The course is taught partly in English and partly in Spanish. Lectures take place in the afternoon (16h to 20h CET) to facilitate the attendance of students joining from Latin America and the US.
As always, the course will feature an exceptonal line-up of international lecturers (83 in the past edition), including Judges from EU and national courts, officials from the European Commission, the Spanish CNMC and other national competition authorities, as well as top-notch academics, in-house lawyers and practitioners.
Students are typically officials from competition authorities, in-house lawyers as well as lawyers/economists in private practice. The course is designed to cater to all levels.
All relevant information (program, costs, sponsors, and list of lecturers in the past edition of the course) is available here:
IEB COMPETITION LAW COURSE 2023
In addition to the possibility of registering for the full course, it is also possible to register for individual modules or seminars. The modules and seminars in this 26th edition will be the following:
Introductory session (13 January- afternoon).
Module I – Cartels and procedure (16-18 January-afternoon). Coordinator: Isabel López Gálvez (CNMC)
Module II – Other agreements and restrictive practices: vertical and horizontal agreements (23-25 January- afternoon). Coordinator: Carmen Cerdá Martínez-Pujalte (CNMC)
Seminar 1- Recent Developments in EU Competition Law (3 February- afternoon). Coordinators: Fernando Castillo de la Torre (Legal Service, European Commission) and Eric Gippini-Fournier (Hearing Officer, European Commission)
Module III- Abuse of dominant positions (6-8 February- afternoon). Coordinator: Konstantin Jörgens (Garrigues)
Module IV – Merger Control (13-15 February- afternoon). Coordinator: Jerónimo Maillo (USP-CEU)
Seminar 2 – Judges and Competition Law (24 February- afternoon). Coordinator: Mercedes Pedraz (Magistrada, Audiencia Nacional)
Module V- Sector Regulation and Competition (27 February-1 March-afternoon). Coordinator: Pablo Ibáñez Colomo (LSE, College of Europe)
Module VI – Public competition law: State aid and Public undertakings (6-8 March- afternoon). Coordinators: José Luis Buendía (Legal Service, European Commission) and Jorge Piernas (Jean Monnet Chair, University of Murcia)
Seminar 3 – Competition Law in Hi-Tech Markets (24 March 2023- afternoon). Coordinators: Alfonso Lamadrid (Garrigues, College of Europe) and Nicholas Banasevic (Gibson Dunn).
We will also be holding three practical workshops dealing with inspections, distribution agreements and mergers.
For additional information please contact competencia@ieb.es
Recent Developments in EU Competition Law (IEB Webinar, 4 February 2022)
Every year Fernando Castillo de la Torre (Director of the Competition team at the Commission’s Legal Service) and Eric Gippini-Fournier (recently appointed as Competition Hearing Officer) coordinate a high-level, one-afternoon seminar in the context of the IEB competition law course. They always make sure that this is one of the top-quality seminars in our field.
Unfortunately for those of us who were planning to travel to Madrid, we have now decided to move the discussion online. This should nonetheless be good news for those of you interested in joining remotely.
For more information and registrations, please write to competencia@ieb.es
The program is the following:
16:00 – 17:45: The review of the horizontal guidelines and block exemptions, and “sustainability agreements”
–Georgiana Capraru Ianus. DG Competition, European Commission.
–Belén Irissarry. Clifford Chance.
–Giorgio Monti. Tilburg University.
–Ekaterina Rousseva. Legal Service, European Commission.
Chair: Fernando Castillo de la Torre. Legal Service, European Commission.
18:00 – 20:00: The meaning and relevance of competition “on the merits”
‐Helmut Brokelmann. MLAB Abogados.
‐María Pilar Canedo. Comisión Nacional de los Mercados y la Competencia and Deusto University.
‐Damien Geradin. Geradin Partners.
‐Viktoria Robertson. University of Economics and Business, Vienna.
Chair: Eric Gippini-Fournier. Competition Hearing Officer, European Commission.
The mardis du droit de la concurrence at ULB are back: 2021-2022 programme
The mardis du droit de la concurrence at the ULB’s Institut d’études européennes need no introduction: led by Denis Waelbroeck and Jean-Francois Bellis, they continue to be a classic, and a must, of the Brussels scene. The programme for the new academic year can be downloaded here.
The series will be closed by the President of the Court of Justice, Koen Lenaerts, on 17 May; and includes the traditional overview of the case law on cartels by Fernando Castillo de la Torre (Principal Legal Advisor and Head of the Competition Team at the Commission’s Legal Service).
I am honoured (and very much grateful to Denis and Jean-Francois) to be joining the impressive line-up of speakers to discuss the recent developments on sports and competition law (on 16 November — I hope to see many of you there).
The topic is dear to my heart (you may remember my post on the General Court’s ISU judgment earlier this year) and the invitation could not be more timely (SuperLeague and all). I hope to be able to share a paper ahead of my presentation via the blog.
The full programme is the following:
26 October 2021: Competition Law and Digital Markets: challenges ahead, by Frederic Jenny (ESSEC and OECD)
16 November 2021: Sports and Competition Law: Recent Developments, by yours truly
14 December 2021: The Review of the Vertical Block Exemption Regulaiton, by Andrzej Kmiecik (Van Bael & Bellis)
11 January 2022: Recent developments in EU Merger Control, by Guillaume Loriot (DG Comp, European Commission)
8 February 2022: La jurisprudence récente en matière de cartels, by Fernando Castillo (Legal Service, European Commission)
8 March 2022: Recent developments on abuse of dominance, by Nicholas Banasevic (who, after a stellar career as a top official at DG Comp, is transitioning into pastures new)
26 April 2022: Recent developments in State aid policy, by Karl Soukup (DG Comp, European Commission)
17 May 2022: The Court of Justice and Competition Law, by Koen Lenaerts (President, Court of Justice)
Recent developments in EU Competition Law (5 February 2021)
It has become a long-established tradition for our friends Fernando Castillo de la Torre and Eric Gippini-Fournier to coordinate a high-level, one-afternoon seminar in the context of the annual IEB competition law course.
This is the first year where participants will not be travelling to Madrid. While we very much hope that this will change next year, the online format (we will be using Microsoft Teams) will give you the opportunity to discover one of the best kept secrets in the world of competition law events. The program speaks for itself:
Friday, 5 February 2021
Moderators: Fernando Castillo de la Torre & Eric Gippini Fournier. European Commission, Legal Service.
16:00 –18:00: Competition investigations in the digital era: recent case law and practice about powers of investigation
‐Marc Van der Woude. President, General Court of the European Union.
‐Cani Fernández. President, Spanish Competition Authority (Comisión Nacional de los Mercados y la Competencia).
‐Nathalie Jalabert Doury. Partner, Mayer Brown.
‐Anthony Dawes. European Commission, Legal Service.
18:00 –20:00: Article 102 –Looking past (beyond) “GAFA”: recent cases and current issues outside digital markets
‐Pierre Régibeau. Chief Economist, European Commission.
‐Evelina Kurgonaite. Secretary General, Fair Standards Alliance.
‐Luc Gyselen. Partner, Arnold & Porter.
‐Ekaterina Rousseva. European Commission, DG COMP.
***
Registration information is available here:
Should you have any questions, you can also write to competencia@ieb.es
IEB Competition Law Course (24th edition)- Now online!
The 24th (!) edition of the competition law course that I co-direct at the IEB in Madrid will take place online. The course (taught partly in Spanish and partly in English) will run from January to March 2021. All lectures take place in the afternoon (16h to 20h) in order to help make it compatible with other professional or academic activities.
As always, it will feature a great line-up of international lecturers that include Judges, officials from the European Commission and other national competition authorities as well as top-notch academics, in-house lawyers and practitioners. This includes Pablo, who will coordinate two modules and take care of the introductory session. Students are tipically officials from competition authorities, in-house counsel wishing to get a deeper understanding of competition law as well as young lawyers/economists. The course is designed to cater to all levels.
While the pandemic will not allow us to travel to Madrid, the online format will enable us to access a wider pool of interested professionals. The full course has a cost of 2,000 euros, and it is also possible to register for individual modules or seminars.
This is the general* program
(*There will be detailed individual programs for every module and seminar, each of which will feature a variety of experts)
Introductory session (15 January- afternoon). Cani Fernández (President, CNMC) and Pablo Ibañez Colomo (LSE, CoE)
Module I – Cartels and procedure (18-20 January-afternoon). Coordinator: Isabel López Gálvez (CNMC)
Module II – Other agreements and restrictive practices: vertical and horizontal agreements (25-27 January- afternoon). Coordinator: Carmen Cerdá Martínez-Pujalte (CNMC)
Seminar 1- Recent Developments in EU Competition Law (5 February 2021). Coordinators: Fernando Castillo de la Torre and Eric Gippini-Fournier (Legal Service, European Commission)
Module III- Abuse of dominant positions (8-10 February- afternoon). Coordinator: Pablo Ibáñez Colomo (LSE, CoE)
Module IV – Merger Control (15-17 February- afternoon). Coordinator: Jerónimo Maillo (USP-CEU)
Seminar 2 – Competition Law in Hi-Tech Markets (26 February). Coordinator: Nicholas Banasevic (DG Comp, European Commission)
Module V- Sector Regulation and Competition (1-3 March-afternoon). Coordinator: Pablo Ibáñez Colomo (LSE, CoE)
Module VI – Public competition law: State aid and Public undertakings (8-10 March 2021- afternoon). Coordinators José Luis Buendía (Garrigues) and Jorger Piernas (University of Murcia)
Seminar 3 – Private enforcement of the competition rules (19 March 2021). Coordinator: Mercedes Pedraz (Magistrada, Audiencia Nacional)
We will also be holding three practical workshops dealing with inspections, distribution agreements and mergers.
If you want to know more, please drop us a line at competencia@ieb.es
Recent Developments in Competition Law (Madrid, 31 January)
Next Friday 31 January 2020 we will be holding the traditional annual seminar on “Recent developments in EU Competition Law and Policy” at the IEB in Madrid. The seminar is coordinated by Fernando Castillo and Eric Gippini and is part of the wider specialist course that I co-direct there (and that Pablo inaugurated last week). It is also a great opportunity for a weekend escape to Spain (a selling point I’ve tried to downplay at home).
The program:
16.00-17.45. Enforcement: Reports from the frontline
Damages in practice
Patricia Pérez. Associate, Cuatrecasas
Marc Barennes. Executive Director, CDC Cartel Damage Claims
The revival of interim measures and the birth of restorative remedies
Peter Schedereit. European Commission, DG Comp
Alfonso Lamadrid. Partner, Garrigues
18.00-19.45. Vertical agreements entering 2020
Isabel Pereira Alves. European Commisison, DG Comp
Patricia Lorenzo. Vice President, Compass Lexecon.
Sergio Baches. European Commission, Legal Service.
José María Jímenez Laiglesia. Partner, Latham&Watkins.
For registration info (the price is 150 euros), please contact competencia@ieb.es. If anyone registers after having read this post, you also get a free drink from me 😉
Chillin'Competition 
