Chillin'Competition

After many years of reflection, we think we have found a way to beat the Legal Service and DG Comp and in a court:

Playing basketball.

The Legal Service has put together an all-star team, known as the LS Lakers. No kidding.

Following a victory against OLAF, they will soon be opposing DG Comp’s team (while they often team up for Luxembourg matches, where they have an astonishing away record, they often play non-public games with each other…).

And they have challenged us to compete with them.

We see this an opportunity here for those people in private practice that would like to know how it feels to beat the Commission in court, even if just once. Or at least to entertain the thought for a while 😉

Any lawyers, economists or consultants out there who think can be up to the challenge, please drop us a line and we’ll try to set it up. We can show the world the teamwork spirit, lack of individualism and superior physical skills that characterize our profession.  It’s about time we stop being known only for our humility and integrity.

We would also appreciate suggestions for a possible team name. Please feel free to submit them as comments to this post. Best suggestion gets a Chillin’Competition sports bag and running t-shirt!

If this initiative is successful, we might ask MLex to cover games instead of hearings (box scores alerts, highlight videos and full summaries directly via email).

Fernando Castillo and Eric Gippini, two good friends of the blog, organise every year a seminar in Madrid in which they discuss recent developments relating to the application of Articles 101 and 102 TFEU.

This year, the seminar will take place on 25 January (Friday) and, as usual, it features top Commission officials and practitioners. For some reason, I have been invited to discuss the market integration objective alongside Jorge Padilla (can’t wait).

If you happen to be around, do sign up for it. The event is invariably of the highest level (and great fun too).

More info on the event and on how to register can be found here. The location, by the way, could not be better (and more convenient): IEB, calle Alfonso XI, 6 (28014 Madrid) – literally around the corner from the spots you see in the pic above.

The programme is the following:

16:00 – 18:00: First panel
Recent developments in the Pharmaceutical sector
Borja Martínez (KPMG)
Blaz Visnar (DG COMP, European Commission)
Irene Moreno-Tapia (Cuatrecasas)
Paul Hutchinson (RBB Economics)

Chair: Fernando Castillo de la Torre (Legal Service, European Commission)

18:30 – 20:30: Second and third panels
Negotiated procedures: Settlements / Commitments
Henning Leupold (Legal Service, European Commission)
Frances Dethmers (Allen & Overy)

The market integration objective in EU competition law
Jorge Padilla (Compass Lexecon)
Pablo Ibañez Colomo (LSE and College of Europe)

Chair: Eric Gippini Fournier (Legal Service, European Commission)

If you have any questions about the event, do not hesitate to send an email to: competencia@ieb.es.

We look forward to seeing many of you there!

Competition is thriving in the chilling competition market. This blog always stood for the proposition that it’s possible to cover competition law in an informative, serious manner, yet with a relaxed or even purportedly fun tone. We are glad to see that apparantly there is increasing demand, and supply, for this. A number of new outlets have emerged and are doing a great job at chillin’ while grillin’ the real issues [I know it’s a bad one but, hey, I needed something to fit the image…] Instead of seeing them as rivals in attracting the short time span attention precious time of slacking  busy ompetition professionals, we see them as complementary goods. They also complement the excellent media services that for very good reasons have long dominated this field.

Two examples (that also share the odd commonality of featuring fishes in their logos) are these:

[Intermission: if any if you can identify a law firm and a department of an institution that also featured marine creatures in their logos, you get one of the last remaining Chillin’Competition meme-coffee mugs]

-Competition Lore, a podcast series run by Prof. Caron Beaton-Wells (University of Melbourne) where she seeks to engage guest in a debate about the role of competition in a digital economy and society.  To get more info, suscribe or listen to the 7 episodes available thus far, click here. Btw, Nicolas Petit (founder emeritus), who’s a big podcast fan, also recently appeared on a different series where he also touched on these issues (see here).

-POLITICO is taking a new approach to covering competition with two weekly publications: Fair Play, a briefing on what’s driving the competition world, and Competitive Edge, a column that analyzes and challenges ideas about mergers control, antitrust, state aid policy and more. Politico has been a very successful entrant in the EU media market, and has made an ambitious bet to cover competition policy too, with a team of expert senior journalists (Simon van Dorpe and Christian Oliver) and, unusually (for the good), a competition economist (Thibault Larger).

Their mandate is to explain how competition is increasingly the weapon used to shunt the policy through, whether it be in the digital single market, the energy union or any other enforcement area. Their primary focus centers on the politics, economics and personalities behind the cases, but they are also keen on op-eds and will soon also be giving subscribers data tracking and case monitoring. The tone is meant to be fun and thought-provoking, but they certainly are not afraid to touch on challenging or uncomfortable issues.  More info on their services is available here [pro@politico.eu]

Below we give you an example of their work, and we also use the occasion to recycle some of the quotes that weren’t finally used  throw some ideas out there that we did not discuss here. Since they are good media professionals, their articles give you quotes from all sides. Since we are (I am) a biased, conflicted, non-neutral lawyer, below I only reproduce only mines 😉

These hyperlinks enable you to read the full pieces which would otherwise only be available to subscribers:

MULTI-SIDED MARKES AND AMEX. Politico ran a very good piece explaining the arguments on the multi-sided discussion on the SCOTUS decision in Amex. For that piece, we contributed with views that I had already advanced on the blog. This is what I sent Thibault for that one (including a couple of quotes that did not make it to the article, but that I still think may be of interest): (i) “The Opinion effectively holds that complex, multi-faceted market realities cannot be examined in silos. Requiring that the full picture be considered is sensible and in line with established EU case law“; (ii)  “The only practices that this Opinion exempts from antitrust liability are those that are necessary for the operation of business models that overall do not restrict but foster competition“; (iii) “The case in no way immunizes multi-sided platforms, nor should it. The case is however a blow to the Nirvana fallacy that one can challenge piecemeal a complex business model under the assumption that only positive things will follow“; (iv) “In reality, this all boils down to the burden of proof. It may be hard to show with empirical evidence that a given practice is, or is not, necessary for a platform to deliver established procompetitive benefits. Very often one simply does not know. But holding that uncertainty plays against the accused would be problematic on many levels“.

POLITICS IN COMPETITION. Politico recently inquired into the real role of politics in competition policy and cases.. My quoted view was that “Political principles guide competition policy. There’s nothing inherently wrong about that.” The problem comes when politics impacts not on policy the outcome of specific individual cases. My additional views on these question avoided recent big cases and mostly focused on State aid cases, where “politics plays a particularly evident and crucial role“. This is because “the institutional set up for State aid cases puts the center of gravity on Member States, so politics inevitably plays a much more important role”. In my view, “a way to make State aid control less political and more objective would be to grant more rights and a greater role to companies (beneficiaries and complainants)”.  In any event, “Courts are however well placed to identify and correct any undue influence of short-term politics”.

HR RULES AT DG COMP. A recent piece crunched through which big players at DG COMP would soon have to move according to HR rules. My take was the value of these rules to the EC is arguable and, in addition, DG Comp is a different animal (there are others, like the Legal Service). Officials deal with cases that require time, familiarity with the law, with the files and industry knowledge. In my personal view, doing away with experience and with some of the DG’s top assets could be counterproductive.

The Global Competition Law Centre will hit a significant milestone on 22 May: 100 (!) lunch talks. And for some of us it feels like yesterday when the first one was announced…

To mark the occasion, the event, devoted to Brexit and its implications for EU Competition, will be a tad longer than usual. It will feature an opening address by Luis Romero Requena (Director General of the Legal Service at the Commission), a keynote speech by Margaritis Schinas (Chief Spokesperson at the European Commission) and some closing remaks by Judge Ian Forrester QC (General Court).

I am honoured to have been invited to take part in the second panel, which will address the tricky issue of State aid control post-Brexit

More info on the event (to take place at The Hotel), and on how to register, can be found here.

The GCLC lunch talk will be over at around 4pm. An hour later, at the Solvay Brussels School Economics & Management, an event on corporate (and other) sponsorship of academic research will kick off. It is organised by Ioannis Lianos, who has been working on a code of conduct for the members of the Academic Society of Competition Law (ASCOLA).

The event, which is great news for the EU competition law community, is jointly hosted by ASCOLA, the Association of Competition Economists and UCL. In addition to Ioannis Lianos and yours truly, confirmed speakers include Damien Geradin, Penelope Papandropoulos, Alexis Walckiers and Wouter Wils.

More info here.

5 reasons why you should register to the upcoming module on EU Competition Procedure at the Brussels School of Competition. Click here for more info and to register.

1. Unless you are a student at the College of Europe (in which case I’m sorry that you also had to suffer through my guest lectures and the case study featuring Pablo and his tax returns), there is no other place where you can discuss in detail every aspect of competition procedure. This is the stuff that very often determines the outcomes of cases and, if you come, you will realize it is fun too.

2. What else would you rather be doing on the afternoons of Friday 18 May, 25 May and 1 June?

3. In 3 intensive 5-hour sessions you will be privy to the inner-workings of competition cases, to case-winning ideas and to a formidable syllabus that you will never have time to read.

4. You will receive a lecture from the handsome man depicted above. And he may perhaps invite you to a round of beers afterwards* (*Disclaimer: Offer Conditional on Evaluation Form).

5. The upcoming module at the Brussels School of Competition has recently been awarded the Chillin’Competition prize as the “Best Module on Procedure at the Brussels School of Competition“. My co-lecturers Nicholas Khan QC (EC Legal Service) and Konstantin Jörgens (Garrigues) are also respectively ranked as the “Best Public Official Teaching in the Procedural Module” and as the “Top-German Lawyer Teaching in the Procedural Module“. I myself have been listed as “Leading Under 36 Above 34 Lecturer on Procedure” and “Lecturer to watch” 😉

P.S. The description above should probably receive a Chillin’Competition Writing Award for “Best Description of a Competition Law Module on Procedure at the BSC“.

We are delighted to advertise a couple of forthcoming events taking place next week before it’s too late.

Lunch talk with the Hon. Makam Delrahim in Brussels (21 February): Our friends from the GCLC have organised a lunch talk, to take place on Wednesday of next week. Makan Delrahim, the current US Assistant Attorney General for the Antitrust Division will be meeting the Brussels community. It certainly sounds like a unique chance! It will all happen at Residence Palace, starting at noon. Information on how to register can be found here.

By the way: I have checked the Eurostar timetable and, if you rush, you should be able to make it for the event organised by Ioannis Lianos on search and net neutrality in the EU and the US. I will be one of the speakers. Conveniently, the event will take place at UCL, which is quite close to St Pancras Station 🙂 . More info here.

Workshop on evidence and judicial review in Madrid (23 February): In the context of the competition law course organised in Madrid by Alfonso and Luis Ortiz Blanco, Fernando Castillo and Eric Gippini (two good friends of the blog) will coordinate an exciting workshop on Evidence and Judicial Review in EU Competition Law. The event will take place at IEB, right behind the gorgeous building you see on the picture above – the one with the blue skies, in case you are wondering which.

You can find all necessary information on how to register for this event in this document.

Eric and Fernando have managed to put together an exciting programme with top speakers, which I copy below (as a bonus, both Alfonso and myself will attending the seminar):

12:30 – 14:30: Evidence in Competition Law

Chair:

Fernando Castillo de la Torre (Legal Service, European Commission)

Speakers:

Daniel Sarmiento (Uría Menéndez and Universidad Complutense)

Andriani Kalintiri (LSE)

Enrique Andreu (Compass Lexecon)

Eric Gippini Fournier (Legal Service, European Commission)

16:00 – 18:00: Judicial review of competition law decisions

Chair:

Eric Gippini Fournier (Legal Service, European Commission)

Speakers:

Maria Eugénia Martins de Nazaré Ribeiro (former Judge at the General Court of the EU)

Santiago Soldevila (Audiencia Nacional, former Judge at the General Court of the EU)

Fernando Castillo de la Torre (Legal Service, European Commission)

Francisco Marcos (Instituto de Empresa)

You may have noticed the blog has been less active in the past few weeks. If you had not realized but somehow suddenly felt more lucid, better informed and like you made more out of your time,  then that may explain it.

Our inactivity on the blog was due to a peak period at work (our respective peak periods have synchronized this time), and a few other things including:

-A firm presentation at the College of Europe titled “What you always wanted to know about life in private practice and were too afraid to ask?”. The slides (not really much content but some pretty good images, including the one above) are available here: What you wanted to know about life in private practice but… (2018)  😉 [Btw, the context was a recruiting exercise which, of course, is also open to other candidates. If interested, shoot me a line]

-Some General Court hearings in Luxembourg last week in relation to the cases we discussed here. The hearings featured the finest discussions on selectivity in State aid that I have heard so far (not at all thanks to me, but to the judges, to our opponents at the Legal Service and to my colleague José Luis Buendía). It was a good reminder of the perks of this job and of why litigating is the best part of it. It also reinforced my view that hearings should enjoy greater publicity (perhaps in the form of transcripts); my notes of the hearing are more useful than most articles on these issues. We would all learn more, many would look at the Court with greater sympathy (Judgments in their current format do not always reveal the underlying legal discussion and the judges’ work, let alone in a reader-friendly way), and lawyers could be valued by how they do their work rather by the firm at where they do it (for more on that, see and old post here). The best imperfect substitute we now have is MLEX, so you can read their pieces on those hearings here and here (if you are subscribed, that is).

-On Friday I also participated in a seminar on the main developments of 2017 in the competition sphere, where we discussed mainly Coty, Intel and Google Shopping. The programme is available here: Seminar February 2 2018. I discussed some legal (not factual) aspects of the Google Shopping case (essentially about the applicable legal standard, the precedent it sets for vertical integration in multi-sided markets and about the notion of effects/foreclosure used in the decision) but did not prepare a presentation (rather Googled live what I wanted to show the audience, including these excellent graphs on the difference between correlation and causation). We may perhaps touch on the other elements sometime soon.

-On Friday Pablo could not join us as he was discussing the same cases… but in Florence. His lecture was part of a training programme for Judges run at the European University Institute. See the programme here.

-Some days ago we also responded to a few questions about legal blogging and about how it fits with legal practice; in the unlikely event that may be of interest, it’s available on the “State of Competition” blog, here.

What we have not done:

-We have not yet commented on the Qualcomm decision (we have been advised to wait and read beyond the press release prior to commenting), nor about another important State aid ruling having to do precisely with selectivity.

-We have not yet discussed Pablo’s forthcoming intervention (21 February) at “Digital Platforms and the Widening EU/US Competition Law and Regulation Gap” in London. Chaired by Ioannis Lianos, it will also feature Brice Allibert (DG Comp), Oliver Bethel (Google), Cristina Caffarra (CRA) , Damien Geradin (Euclid), Bill Kovacic (see his interview with us here), Ioannis Kokkoris (Queen Mary University), Florence Thepot (University of Glasgow) and the inimitable Superwuster (aka Tim Wu) (Columbia). If you feel like signing up, take a look at the programme here:

-We forgot to tell you here about some events, including about the upcoming W@Competition’s 2^nd annual conference in Brussels on 1 March. The title “Is Disruptive Competition Disrupting Competition Enforcement”. The all-female list of nominees speakers includes phenomenal in-house lawyers, private practitioners, economists and enforcers. I will not be announcing any winners this year, so this time the whole event will be interesting. You can check it out and register here. Instead of meme-mugs for attendees, we suggest this gift.

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!

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 3^rd of July in Brussels.

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…