A Proposal in relation to Commitments
I attach hereafter a link to the presentation on Article 102 TFEU that I gave yesterday at the Mardis du droit de la concurrence.
I end up concluding that time is ripe for Communication on Article 9 (or a notice, or guidelines, or a guidance, or whatever a little formal).
But more importantly, I make substantive suggestions to modify the Article 9 tool (eg. to introduce a bifurcation within Article 9 for protracted infringements, etc.).
Commissioner Almunia has been described in the press as “Mr. Commitments”.
I believe that he would really leave office on a high note with the adoption of a Communication rationalising and codifying the practice of COMP in this controversial, and often misunderstood, area.
Présentation N PETIT – Mardi du droit de la concurrence – Article 102 TFUE
An announcement and a nomination
The announcement: On 15 February my co-blogger Monsieur le Professeur Nicolas Laurent Max Petit (no kiddin’) will be joining DG COMP for a 6-month stint. I’m curious as to how this experience will impact his views on the Europen Commission’s work.
Btw, Nico took care of the inaugural lecture at the IEB course in Madrid on Friday and did a great job. Tomorrow he’ll be delivering a must-attend presentation on Art. 102 at Les Mardis de la Concurrence in Brussels (the PPP will be made available here).
The nomination: Chillin’Competition has been nominated as one of the best foreign legal blogs in a competition ran by our favorite German site (Kartellblog) (as if we were able to read German…). Thanks to Johannes Zöttle and to whovever nominated us. Since it’s always nice to win something (or so I’m told 😉 ) you can vote for us here: http://kartellblog.de/2014/01/06/poll-beste-jurablogs-2014/
Collaborative research (and some propaganda)
This WE, I’ll be prepping for the Mardis du droit de la concurrence held at the Free University of Brussels (ULB) next Tuesday. The talk is about recent developments in the law of Article 102 TFEU (read in the last year). This is the propaganda bit of this post.
On substance, not much to report I am afraid. Pity that Intel is still stuck in the judicial pipeline.
So I thought of saying a few words on institutional developments. I’ll make the usual point on Article 9 commitments (and the less usual one that time is ripe for a communication on this, simply to clear away some ambiguities of R1/2003 and streamline the process). I’ll talk also of the // proceedings between CJEU and Commission in the ongoing smartphones war (with its recent article 15 addition) .
But there’s one thing I would like to do above all: question whether the Commission is sufficiently staffed to handle the flood of complaints that have been lodged before it, and in particular, before Unit C/3, Antitrust, IT, Internet and Consumer electronics. For this, I’d need more specific info on the number of formal complaints lodged. But despite the wealth of info available on COMP’s website, there’s no registry of formal complaints :(.
I have already asked this information to the official in charge, but they are understandably not able to disclose it.
So I today turn to you: could you help me re-compile the list of formal cases/complaints currently lodged before unit C/3? You can post this info as comment to this post or email me at nicolas.petit@ulg.ac.be
I also buy info on “ghost cases”, ie forgotten cases that are no longer on the radar screen of external observers: Dupont/Honeywell, Mathworks, Wikileaks, spare part cases etc.
And finally, I am a taker of any information of cases which have been relegated to the low end of the priority list of this Commission.
Besides this, I’ll submit that substantive law developments yield institutional effects. In my opinion, but this is my opinion only, the forms-based approach is in part responsible for the flurry of – weak – complaints that have been brought before COMP.
It is so elastic that it offers ammunition for ludicrous grievances. Yet another reason to embrace fully the economic approach of Article 102 TFEU.
PS: I Article 9-commit to negotiate a free ticket for those who help.
Pomposity v Social Value in Legal (and Antitrust) Scholarship
I just saw this graph on Prof. Einer Elhauge’s LinkedIn account; the original source is Eric Posner’s blog (yes, the son of Richard Posner and a big name in his own right too).
I’d be curious to know about the underlying methodology (economic analysis seems to favor economy-related disciplines). It would seem as if an antitrust legal scholar had asked an economist to come up with a seemingly scientific study corroborating a given thesis. Not that this would ever happen in private practice… 🙂
ADS
In the course of the past few days and weeks some friends have asked us to advertise a few upcoming Competition-related happenings. We’ve taken our time, but here’s a compilation of stuff worth knowing about:
The 3rd edition of Concurrence’s Antitrust Writing Awards is now ongoing. You can vote for your favorite piece before the 1st of March.
Harvard’s European Law Association (HELA) has scheduled its first Antitrust conference, to be held on 24 March. It will deal with the informal application of competition law in the U.S. and the EU. Click here to check out the call for papers and to find out more info: Hela_Call_Abstracts_updated (and apologies to Zena Prodromou for not having done this before!)
On 30 January the ABA’s Section of Antitrust Law will be holding a networking reception + a panel (Inquiries into Competition and Alleged Misconduct in UK Financial Services) in London. Click here for more info.
The annual junior competition lawyer’s conference will take place on 31 January. This is an initiative that we’ve always supported and that would be nice to see replicated in places other than the UK. Click here for more info.
And also on 31 January we will be hosting the first seminar within the competition law course that Luis Ortiz Blanco and I co-direct in Madrid. It will be devoted to Recent developments regarding the application of Article 101 TFEU (including damage claims, anti-competitive agreements in the pharma industry and the fight against cartels in a context of economic crisis), and will feature Fernando Castillo de la Torre (EC’s Legal Service), Eric Gippini Fournier (EC’s Legal Service), (Carlos III University, EAGCP and CEPR), Mario Mariniello (Bruegel), Helmut Brokelmann (MLAB), Maria Luisa Tierno (DG Comp), Natalia Fabra (Universidad Carlos III, EAGCP), Flor Castilla (EC’s Legal Service), Borja Martínez (Uría Menéndez), Antonio Martínez (Allen&Overy), Jesús Alfaro (Linklaters) and Gerald Miersch (DG Comp). I’ll post the final program here as soon as it’s ready.
Very importantly, a reminder is in order: on February 7-8 AIJA and the College of Europe will be holding the not-to-be-missed conference Antitrust 2.0 Competition Law and Technology.
P.S. We’ve also been asked to mention that the Swedish Competition Authority is taking steps to publish decisions in English. Our source suggests to present this as one of the major 10 developments on the year, which I’m a bit hesitant to do 😉 However, the Swede’s move is commendable, particularly when compared to what other national competition authorities do (the new Spanish authority doesn’t even have an English version for its webpage…)
Conference on Preliminary rulings in EU Competition Law
In Bruges, on 17 January, the GCLC will celebrate its 10 years with a conference on preliminary rulings in EU competition law.
For more, see here.
New Paper
A new paper, this time with co-written with an IP specialist, Prof. Sven Bostyn (University of Liverpool).
We take a shot at the flawed patent=monopoly equation.
Here’s the abstract:
“A patent right is an exclusionary right. With it, the patent holder can exclude third parties from making, using, selling, etc. products or processes protected by his patent. In the past, this right has also been referred to as a ‘monopoly right’ and this has lead to considerable confusion about the scope of patent rights and the role of the patent system in a modern economy. This paper seeks to provide some clarity on this issue and highlight the distinction between the exclusionary right granted by patent law and the notion of monopoly in economic regulation“.
New Book on Merger Remedies
European Merger Remedies
Law and Policy
By Dorte Hoeg
As merger transactions become more complex, so do the remedies involved. This book seeks to identify and examine the most important aspects of merger remedies, which have emerged and evolved in the European Commission’s policy and practice over the past 20 years. The in-depth analysis of applicable provisions and guidelines is structured in accordance with a typical ‘remedies lifecycle’: the negotiation, submission, assessment, adoption, implementation and enforcement of remedies. Furthermore, numerous conditional clearance decisions and judgments as well as studies and legal literature on the subject are described and put into a coherent analytical framework with the aim of providing as much nuance as possible in the evaluation of the Commission’s past and present remedies policy and practice.
While the Commission indisputably has accomplished numerous successes in its remedies enforcement over the years, it has also encountered some significant obstacles and shortcomings along the way. To this effect, the final chapter in the book critically assesses whether the current framework, which has remained unchanged since 2008, continues to provide an adequate regulatory response to today’s remedies issues and challenges. Where adjustments and improvements are deemed desirable or necessary, possible measures are considered.
Dorte Hoeg recently obtained her Doctor of Philosophy from King’s College London based on a thesis on EU merger remedies. She is a former national expert and case-handler at the European Commission’s Directorate-General for Competition and has also previously worked for the Danish Competition Authority, including representing the authority in the EU’s Advisory Committee on Concentrations.
December 2013 288pp Hardback 9781849464116 RSP: £65 / €85
20% Discount Price: £52 / €68 (+ Postage and Packing)
Order Online
http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781849464116
If you would like to place an order you can do so through the Hart Publishing website (link above). To receive the discount please type the reference ‘CCB’ in the voucher code field and click ‘apply’.
Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW
Telephone Number: 01865 517 530
Fax Number: 01865 510 710
Website: http://www.hartpub.co.uk
Exclusionary Effects in Google: Are They Relevant at All for the Outcome of the Case?
[Thanks to Alfonso and Nicolas for allowing me to post yet more thoughts on the Google investigation]
We have now entered the fourth year of the investigation into Google’s practices (and this without even a statement of objections being issued). The latest statements by the Commissioner suggest that the final decision will most probably not be issued any time soon. Because the proceedings are taking (objectively speaking) so long, one is tempted to think that, were Google’s practices truly exclusionary, negative effects in the marketplace would have already materialised. Arguably, the time elapsed since the opening of the investigation is long enough to establish whether the initial concerns were justified.
As a complete outsider, I do not have the means to know whether action by the Commission is based on figures suggesting the likely exclusion of rival services. But I know that I make compulsive use of Amazon (the immense success of which is no secret to anyone), that I regularly check reviews on Tripadvisor (which seems to be a healthy business with a growing number of unique visitors) and that, every now and then, I use Expedia (which is facing increased competition, including from Tripadvisor). As everybody else, I read newspapers mostly online, and I notice that the above and other search-related services advertise their sites prominently through the media. And I also know that some firms are alive enough to claim before the Commission that the concessions offered by Google are insufficient.
If it were really based on the exclusionary effects of Google’s practices on competing services (or if the Guidance were to be taken as the expression of a serious long-term commitment), the likelihood of these effects would be the central aspect of the investigation. However, I am again – I cannot help it – under the impression that the outcome of the case depends on other factors. As is true of the legal framework (Where’s the Law?) under which they are (if at all) being assessed, the likely effects of the alleged practices seem plain irrelevant in this regard. The only question that seems to matter –and this is a real pity, given the exciting and novel issues raised – is whether the commitments offered by Google are acceptable for the Commission.
Happy 2014 everyone!
Chillin'Competition 