The Antitrust Hotch Potch

Gothic Marketing

 

Unrelated to competition law. But this is real, agressive, marketing competition.

Nicolas

Antitrust Encyclopedia

Together with Elise Provost, a former colleague of Howrey LLP and now a Phd student at the Universities of Liege and Paris I, I have redrafted the sections of the antitrust encyclopedia on French and Belgian institutions. For those of you who do not know it yet, the Antitrust Encyclopedia comprehensively describes the various competition laws of the EU Member States. This website  is coordinated by Ioannis Kokkoris (OFT and UCL).

Nicolas

New GCLC Working Paper - Article 81 EC and Strategic Behavior

I have a new paper in the GCLC working paper series (in French), which deals with the question of how firms may seek to instrumentalize Article 81 EC in order to gain a competitive - strategic - advantage. This paper was presented at a conference organized by Antoine Masson from the University of Luxembourg in December 2008.

Nicolas

On-Line Casebook

Professor Spencer Weber Waller has recently posted the table of contents on SSRN of an on-line case book on international antitrust and a link to the full contents.  It deals mostly with jurisdiction,  procedure, trade and antitrust, and harmonization rather than the substance of the law.  See here for the link.

A most welcome initiative.

Nicolas

Quoted in Cour d'appel de Liège - 9 février 2009 ASBL Agim contre SA Oxycure Belgium

 

A little self-promotion, for an article which was a great fun writing.

Nicolas

Conference on Patent Reform - Amsterdam, 26 and 27 March 2009

See here for the programme.

ECJ - Kanal 5 Ltd and TV 4 AB v (STIM) upa

My ruminations over an interesting ECJ ruling of 11 December 2008, which might open new perspectives in the area of exploitative abuses:

In Kanal 5 Ltd, TV 4 AB v (STIM) upa, C-52/07, the ECJ had to determine whether (i) the royalties charged by the swedish collecting society to broadcast companies were excessively high, hence abusive under Article 82 (a) EC ; and (ii) whether the different fee formula applicable on the one hand, to a public broadcast company and, on the other hand, to two commercial broadcast companies, was discriminatory, hence abusive under Article 82 (c) EC.

Whilst, on the first question, the Court recalled its much chastised Hoffman La Roche case-law on excessive pricing, it nonetheless whispered that, with a view to establish that a price is unreasonable under Article 82(a) EC, the purpose of the royalty could be taken into account: here, the financing of music creation, through the protection of an adequate remuneration for composers (§§30-31). With a bit of speculation, the Court seems to draw - implicitly - a link between the price of a service on the market and the ex ante incentives of service providers to innovate. This reasoning could apply, by parity of reasoning, to many other sectors (i.e. pharmaceuticals, etc.). This is further confirmed by the fact that the Court explictly indicates that a balance must be struck between the interests of the broadcasters and the incentives of composers to produce novel musical work.

But that is not all. On the second question, the Court suggests that the mere proof of different conditions for similar transactions is insufficient to trigger the application of Article 82(c). One must prove the existence of a competitive disadvantage and, to do this, establish first that the dominant firm's customers are rivals on a same relevant market (§§45-46). As Damien and I wrote in a previous paper, most price discrimination decisions to date have failed to properly analyse the downstream market. Let's hope this judgment will induce agencies and courts to investigate properly the effects of the alleged discrimination on the downstream market.

In sum, a welcome ruling, albeit too short (because an Article 234 EC ruling).

Nicolas

First Natolin Conference of the GCLC - 13 March 2009

As some of you may know, there's one College of Europe, but two campuses, Bruges and Natolin (Warsaw, Poland).

Because the GCLC is global, and because competition law is decentralized, the GCLC next conference will take place on 13 march 2009 in Natolin. The conference, which will be chaired by Massimo Merola, is entitled "Competition law – New tendencies, new tools and new enforcement methods from an EC and Polish perspective".

The programme and registration form can be downloaded below.

Nicolas

Download Programme GCLC Conference - 13 march 2009 - ENGLISH FINAL VERSION

New Blog on EU Telecoms Law

My colleague and friend, Laurent de Muyter has recently launched a blog on EU Telecoms Law. Well-worth having a look. It is well-documented, often updated and, more importantly, providing critical views on EU telecommunications law. Laurent is a lawyer at Jones Day Brussels and a research fellow of the Institute for European Legal Studies in Liege.

Nicolas

Excessive Pricing on the Judgments Reprints Market?

In Belgium, not all judgments are published and those published are often released a long time after their adoption. Obviously, this makes the job of legal scholars very painful. To remedy this issue, the registrars of the Courts offer reprints of judgments upon payment of a pre-established price/page.

I am currently looking for a copy of a ruling of the Brussels court of appeal, handed down on 2 February 2009, in cases 2005/MR3 and 2005/MR/4. I called the Brussels court of appeal registrar this morning. I am told that the ruling, is 36 pages long, and that the price/page is..... 10€, so it will cost me no least than 360€ (!) to get a copy of the ruling. Of course, I am told that it will soon - i.e. read a few months - be published on the website of the website of the Belgian Competition Council...

Frankly disappointing, and akin to excessive pricing for a service that mainly involves paper reprinting costs.

Nicolas

Picture: http://www.ebru.be/