Meeting on Greece’s Ionian island of Ithaca in late August for the first-ever EU Competition Law Summit, leading minds and experts from European and international arena came together in the lively two-day summit. Gibson Dunn partner Peter Alexiadis masterminded the summit, which he hopes to repeat biyearly.
The panels of discussion ranged from the enforcement and review of competition matters and the evolving standards for behavior practices to the current and emerging trends in merger policy and where regulatory policy meets antitrust paradigms.
With the series of discussions running from August 23-24 at the Cultural Centre in picturesque, 16th-century harbor of the island’s capital and largest port of Vathy, those in attendance delved deep in the antitrust and competition practices that are currently informing EU economic policy.
Speaking at event, the Commissioner of the Hellenic Competition Authority, Lefkothea Nteka, delivered the keynote address to leading legal minds.
In her address, Nteka discussed her own experiences working with a competition authority tasked with enforcing a competition law on economic operators that were unsympathetic to “excessive competition” and “used to doing business with substantial government support in an economy afflicted during the last eight years by severe economic crisis”.
At the time, Nteka said she witnessed major changes in all aspects of competition law policy and enforcement both in Greece and the EU saying the institutional framework of the Authority changed significantly enough to strengthen its independence and decision-making powers to swiftly deal with a growing number of pending cases.
Nteka highlighted how she saw the Authority use its know-how within the framework of the European Competition Network which to create a highly advanced competition enforcement network by following closely the modernisation of the EU’s competition policy and participating in discussions regarding the legal standards needed to enforce Article 102 of the Treaty on the Functioning of the European Union.
The best way to respond to a crisis, according to Nteka, is “though the vigorous and rigorous application of competition law and by strengthening the institutions that support competition.”
While addressing those in attendance, she asked the audience, how a competition authority should face repeated instances of governmental interference to its independence and ability to function.
In her opinion, “this is a prime example of how competition enforcement – though fact- and case- specific situations – may ensure the effectiveness of regulation”, while at the same time complementing the development of a sound and solid regulatory regime.
Enforcement and Review in Competition Matters
Following Nteka’s keynote address, the summit opened with a discussion on the enforcement and review in competition matters, with a panel that included Judge Marc van der Woude from the General Court of Luxembourg, King’s College and George Washington University Professor William Kovacic, and Renato Nazzini, also a professor at King’s College. The three were joined by moderator Alison Jones, herself a professor at London’s King’s College, to discuss how competition matters can be reviewed and enforced. The focus of the discussion zeroed in on assessments of complex economic issues by review courts, which handled by Judge van der Woude. He followed by professors Kovacic’s and Nazzini’s takes on the arbitration of competition law disputes and US antitrust policy under the Trump Administration.
Behavioural Practices and Evolving Standards
Wrapping up the first day’s discussions was a panel on behavioural practices and evolving standards. Nicholas Hirst of MLex in Brussels chaired the next panel’s talk of the evolving standards of behavioural practices concering both antitrust and competition cases. Included in the discussion was Assimakis Komninos, who discussed what private enforcement can teach in cases of public enforcement in cases involving the EU’s Article 102 in the bloc’s competition law, which, itself, deal with abuse of a dominant position on Europe’s internal market. The London School of Economics’ Profession Pablo Ibáñez Colomo who followed up on the theme of Article 102 by articulating his view on the appropriate legal standard to assess competition law violations. Massimiliano Kadar, a deputy head of the DG Competition’s unit and Cuatrecasas of Madrid partner Cani Fernández covered various competition law cases involving Intel and Qualcomm.
Merger Policy and Current and Emerging Trends
The discussions of the second day of the summit kicked off with a panel covering merger policy and current and emerging trends. Brattle Group principal Eliana Garcés, Jorge Padilla of CompassLexecon, and Linklaters’ Nikolaos Peristerakis were moderated by AT&T’s Senior Vice President in Karim Lesina as the three spoke about the EU’s merger control along with several other topics.
Regulatory Policy and Antitrust Models across the EU
The summit concluded with a final panel moderated by MLex’s Hirst, which included Professor Martin Cave, OBE, of the London School of Economics; Spyros Droukopoulos Senior Consultant for Oxera in Brussels; Dr. Katerina Maniadaki of Ofcom in London; and Gibson Dunn partner Peter Alexiadis as they discussed regulatory policy and antitrust paradigms in the EU, including net neutrality.
EU Competition Law Summit: Abstracts
The following are abstracts from papers that will be published in a special issue of the Oxford University Press Journal of European Competition Law & Practice.
Judge Marc van der Woude
General Court (Luxembourg)
Recent cases such as Cartes Bancaires (C-67/13 P, and Intel, C-413/14 P, indicate that the General Court must exercise an in-depth review of Commission decisions by analysing a series of economic factors. The question arises how to reconcile this type of control with the margin of assessment which the Commission has when it carries out its own appraisal of these often complex factors. Indeed, the system of legality review set up by Article 263 TFEU does not allow the General Court to substitute its own view as to the expediency of administrative action to that of the Commission. This contribution submits that the answer to this question can be found in the burden of proof that rests upon the Commission pursuant to Article 2 of Regulation 1/2003.
Professor Renato Nazzini
King’s College (London)
In principle, competition law disputes are arbitrable. Therefore, there may be parallel proceedings before arbitral tribunals and competition authorities. This article examines the interactions of such parallel proceedings. These may take several forms. If a competition authority has already decided the matter, the decision would generally be admissible in arbitral proceedings, although its binding effect or evidentiary weight may be unclear. If the arbitral and competition authority proceedings are running in parallel, the question arises as to whether the arbitration could or should be stayed to await the outcome of the competition authority proceedings, or vice versa. Furthermore, there may be an issue as to whether evidence produced and pleadings submitted in arbitration and the arbitral award itself may be used in the proceedings before the competition authorities. Conversely, it is necessary to discuss whether and, if so, in which circumstances evidence obtained by or submitted to the competition authorities may be used in arbitration. This article puts forward a structured approach to the question of “cooperation” between arbitral tribunals and competition authorities, which aims at striking the right balance between the requirements of efficient resolution of disputes through arbitration and the effectiveness of competition law enforcement.
Professor William Kovacic
King’s College (London)
George Washington University (DC)
Those who believe that the attempt of the DOJ to block the AT&T/Time Warner merger was a one-off occurrence under the Trump administration might be mistaken. This paper explores how the current regime’s trade protectionist policies are being potentially complemented by a policy of greater – rather than less- intervention on the antitrust side, especially in areas which had hitherto felt immune from effective antitrust enforcement. The hiring of a number of pro-active antitrust enforcers and a political posture which sees little love lost between the President and the ICT sector signals a ramping up of antitrust activity in that sector.
Partner, White & Case (Brussels)
Article 102 TFEU is not only enforced by the European Commission and national competition authorities but is also increasingly applied by courts in civil litigation, where the victims of the alleged abusive behaviour claim damages. The plaintiffs tend to be competitors of the dominant company. While there have been more follow-on cases over the past few years, stand-alone cases still making the majority of Article 102 TFEU civil litigation.
One of the main differences in approach between competition authorities (public enforcement) and civil courts (private enforcement), is that the latter concentrate on anti-competitive harm in a much more concrete manner than the former. They cannot follow an abstract approach that is centred on the protection of competition on the market and on ensuring a competitive market structure. Instead, they reason in terms of the existence of anti-competitive harm suffered by specific persons and causally linked to an abuse of dominance.
This may explain why claimants are often not successful in actions for damages in Article 102 TFEU cases, even in follow-on cases, as a review of the national case law indicates. It is also interesting that, as the courts decide the question of both civil and antitrust liability, they tend to consider the two types of liability as being intertwined. Indeed, although the two types of liability are theoretically separate, it can be difficult to de-couple them in practice, especially in a case involving a claim for damages for exclusionary practices brought by the supposed victim of the exclusionary conduct.
Article 9(1) of the new Damages Directive, which provides that the finding of an infringement in public enforcement proceedings should be deemed to be irrefutably established at follow-on private enforcement proceedings, is not expected to change fundamentally the practical reality. Of course, this is not a zero-sum game where the one approach is wrong and the other is right. The functions of agencies and courts are different. At the same time, follow-on cases represent a sort of ex post assessment of public enforcement decisions. The outcomes of that litigation should not go unnoticed but rather should be carefully monitored by competition authorities, with a view to adopting the right approach and avoiding the risks inherent in adopting a formalistic approach, when they themselves enforce unilateral conduct rules.
Professor Pablo Ibáñez Colomo
London Schools of Economics (London)
College of Europe (Bruges)
In EU competition law, some practices are deemed prima facie unlawful, others are prima facie lawful, while the rest falls somewhere in between (that is, it is subject either to an effects or to an enhanced effects analysis). The purpose of this paper is to explain why conduct falls under one point or the other of the legality spectrum. An analysis of the case law shows that conduct is deemed to be prima facie lawful when it is presumed not to restrict competition that would otherwise have existed and/or where any alleged effects would not be attributable to the practice. Conduct is deemed prima facie unlawful, in turn, where it is deemed to have no plausible pro-competitive purpose and is at least capable of restricting competition.
The reason why some practices are subject to an enhanced effects analysis – as opposed to a standard effects analysis – has to do with the nature of the remedy. The stricter standard (which requires at least evidence of indispensability) applies where intervention would involve the application of pro-active remedies leading to positive obligations that lead to changes to the way firms conduct their business, such as an obligation to license.
Deputy Head of Unit C.1, DG Competition, European Commission (Brussels)
King’s College (London)
The paper summarises the state of the case-law on conditional rebates after the Court of Justice’s ruling on Intel and the application of this legal framework by the European Commission in the Qualcomm (exclusivity payments) and Google Android cases. It concludes that the Commission’s recent enforcement practice is consistent with the case-law and economic principles.
Partner, Cuatrecasas (Madrid)
The allocation of the burden of proof in EU Competition Law has both substantive and procedural implications. Over the past few years, the increasing use of presumptions in EU competition cases has shifted the burden of proof away from the European Commission and national competition authorities in some cases, thus facilitating their job when seeking to prove the existence of an infringement.
The recent Intel judgement of the European Court of Justice (ECJ) provides an opportunity to discuss the role of presumptions in Article 102 TFEU as well as the implications of such presumptions for the allocation of the burden of proof. The ECJ has clarified that exclusivity rebates offered by a dominant firm are presumptively illegal but that such a presumption is rebuttable. As a result, the burden of proof in exclusivity rebates cases shifts to defendants, which must prove that the rebate is either incapable of foreclosing as-efficient competitors or, in the alternative, that they result in efficiencies that offset their anti-competitive effects.
This article analyzes how defendants in exclusivity rebates cases can rebut the presumption of illegality in practice, with a special focus on the efficiency defense, and discusses whether the European Commission’s requirements for such a defense established in the Guidance Paper are consistent with the treatment given to the efficiency defense in the Intel Judgement.
Principal, The Brattle Group (Cambridge)
Conglomerate mergers have traditionally been screened for the likelihood that firms engage in harmful anti-competitive strategies involving tying and bundling. The assessment of such theories of harm is a tried and tested exercise with an extensive and mainstream theoretical literature to rely upon. The concern that these theories may not be sufficient to address the increasing complexity of modern markets have given rise to new theories that attempt to describe new and more complex potential sources of harm. Bargaining theories, originally relevant for horizontal mergers, are being explored to predict increases in market power with negative welfare effects in vertical and conglomerate mergers. Dynamic effects are being scrutinized to explore new channels of harm, notably through R&D and innovation. These exercises legitimately explore new market realities, but also call for caution.
Economic theory does not have the same predictive power in conglomerate mergers than it has for horizontal mergers. Models often produce results that are ambiguous and contingent on the specifics of the case. As a consequence, a merger assessment does not uniquely center on the estimation of the magnitude of potential harm but must, from the outset, provide convincing evidence that a particular model is applicable to the situation at hand. In conglomerate mergers, efficiency motivations are also likely to play a prominent role in the analysis. This reinforces the unsuitability of any presumption of harm. Although this is already the case for traditional assessments of tying and bundling strategies, it becomes even more important where there is a reliance on novel and less general theories of harm. Some useful principles should be kept in mind. First, investigators should empirically validate the relevance of their theory by establishing whether the economic effects they are considering are relevant and economically meaningful in the case. Second, the analysis of efficiencies should be central to the assessment from the beginning of the investigation. Finally, the corporate strategies foreseen by the regulator must be consistent with what the broader industry agrees are the drivers of competition and innovation in that space to provide credibility to the regulatory assessment.
Senior Managing Director, CompassLexecon (Madrid)
Recent European Commission decisions in the Dow DuPont and Bayer Monsanto mergers have given rise to a significant substantive debate about the innovation effects of horizontal mergers. Should competition agencies and courts presume that horizontal mergers are detrimental to competition? How can that presumption be rebutted?
This paper argues that such a presumption would be unjustified. While some horizontal mergers may reduce the parties’ incentives to innovate, whether that is indeed the case depends on case-specific factors. It should be incumbent upon the competition agencies and courts to prove that the net effect of a merger on the incentives to innovate is negative.
In addition, the paper demonstrates that a horizontal merger can be pro-innovation, even when its impact on incentives to innovate is negative. This is because it may increase the ability of the merging parties to fund innovation and/or to implement a successful R&D program.
Counsel, Linklaters (Brussels)
The presentation provides a brief historical overview of the role that efficiencies have played in EU Merger Control: while efficiencies were not recognized under the original ECMR, there is more scope for merger efficiencies under the new EUMR, particularly for vertical/conglomerate mergers. However, merger efficiencies are still handled with caution by practitioners and are not invoked on a consistent basis, given: (i) the very strict legal test used to justify their application, and (ii) the risk that some of the efficiency arguments and evidence being used against the parties as part of a theory of harm.
Looking forward, the key area where merger efficiencies might play a certain role appears to be that of vertical and conglomerate mergers. In horizontal mergers, particularly in oligopolistic markets with high barriers to entry/expansion, merger efficiencies are unlikely to play any meaningful role, given the broad interpretation of the SIEC test and introduction of new theories of harm by the European Commission, on the one hand, while rejecting the role of dynamic efficiencies on the other.
Practitioners have attempted to address this asymmetry in approach by attempting to introduce merger efficiency arguments as part of the counterfactual (Microsoft/Yahoo!) or as part of the assessment of effects (Dow/Dupont), but the Commission has not always accepted this approach. Given the expansive interpretation of the SIEC test in horizontal mergers, which now also covers innovation effects, it would be welcome if the Commission showed greater flexibility in incorporating efficiency arguments into its competitive assessment.
Partner, Gibson Dunn (Brussels)
Visiting Professor, King’s College (London)
The paper explores the extent to which regulatory principles have, over time, become part of the conventional wisdom of competition law enforcement. To this end, a series of regulatory policy developments are identified as having become part of the fabric of EU competition law, especially the case with the loosening of the test for the application of the “essential facilities” doctrine in the energy sector and in the application of the margin squeeze doctrine in the telecommunications sector. Over time, fundamental economic and legal standards from the ex ante world which relate to cost calculations and cost allocations have also been drawn into ex post enforcement practice.
The most recent and important manifestation of these concepts is in the context of online platforms, where the application of standards such as “discrimination” and “fairness” in the assessment of unilateral market power owes much to the approach endorsed in the world of regulation. Finally, the paper explores the fact that ex post thinking is itself contributing to ex ante practice, and whether this cross-fertilization of disciplines is arguably furthered by institutional changes which promote the concentration of ex ante and ex post powers in the European Union.
Professor Martin Cave OBE
London School of Economics (London)
Jean Tirole discusses the challenges competition policy faces when confronting two-sided markets, and ‘the review of the software of competition policy’ which is required. I understand his phrase to refer to the analytical processes or ‘operating system’ which bridges the gap between the between the ‘hardware’ of the statutes and the ‘apps’ – or individual case decisions. This paper discusses current responses to these challenges in the case of mergers, drawing on a recent broader review by the OECD and the experience of one particular two-sided merger inquiry performed by the UK competition authority.
The aspects discussed are: market definition; the effects of single- and multi-homing; price-concentration analysis; the strength of indirect network effects; and the possibility of market tipping. The paper concludes that there are viable software patches for addressing at least some of these challenges, but that others – particularly the measurement of indirect network effects, require more theoretical analysis. It is also desirable to collate the lessons of practical experience.
Dr. Katerina Maniadaki
Net neutrality broadly refers to the principle of equal treatment of online services by companies providing access to the Internet. The role of competition and competition law in safeguarding this principle has been at the heart of the net neutrality debate since its nascence. For its opponents, net neutrality is a “solution in search of a problem” that could have been solved by existing tools, notably competition rules, if – and when – the market failed to deliver. For its proponents, net neutrality is about much more than addressing anti-competitive behaviour.
Unsurprisingly, these two diametrically opposed positions are linked to equally diverging views about the need for, and design of, regulation in this area. Over the last decade, the EU legislature marked a stark move from one end of the spectrum to the other. The outcome of this process was the adoption of a Regulation designed to “protect end-users”, “guarantee the continued functioning of the internet ecosystem as an engine of innovation” and “ensure the openness of the Internet”.
The majority of the provisions in the EU Regulation bear little resemblance to competition rules when it comes to their objectives, triggers and types of practices that they prohibit; although reference is made to competition law principles when it comes to the assessment of certain commercial practices, these are only part of the analysis. This choice of instrument seems unavoidable given the goals that the EU legislator has set for itself, a corollary of which is the imposition of symmetric obligations designed to achieve specific regulatory outcomes. Achieving these outcomes could not have been left to competition law enforcement alone, at least not if this tool is to be used, exclusively or predominately, as a basis of protecting an efficient competitive structure and consumer welfare.
Senior Consultant, Oxera (Brussels)
The inclusion of Most Favoured Nation (MFN) clauses in contracts between providers of services (e.g., insurers or hotels) and online platforms (e.g., Expedia or Amazon) has coincided with the proliferation of e-commerce in the last decade. However, in the last few years a number of competition authorities in Europe and elsewhere have sought to ban certain types of MFN clauses citing (theoretical) competition concerns in relation to price levels, entry and innovation.
Are these concerns justified from an economist’s point of view? Is the imposition of bans, and other enforcement initiatives, in line with principles of inter-brand competition and general consumer welfare? What are the lessons from the ex post assessments carried out on the private motor insurance market and the hotel-booking sector?
The paper seeks to shed light on the above questions. In the opinion of the author, both pro- and anti-competitive effects of MFN clauses are not merely specific to the contractual agreements in question, but importantly depend on the market characteristics and consumers’ shopping behaviour.
A ‘one-size-fits-all’ approach is likely to lead on one the hand to regulatory certainty, while on the other hand undermining a well-functioning online sector that otherwise works well for consumers.