The Antitrust Hotch Potch

XXVth Lunch Talk of the GCLC - Collective Dominance and the Airtours Test

D. Spector (Paris School of Economics) and G. Drauz (Howrey LLP) will explain how to properly implement the Airtours conditions. Promising, not least in light of the fact that the issue is at the heart of the Commission's new review of the Sony/BMG transaction (and that the CFI has somehow relaxed these conditions in its Impala ruling).

See below for a link to the registration form.

Download registration_form_25th_lunch_talk_of_the_gclc.pdf

Nota: apologies for the low activity on the blog lately, but I am buried under work, trying to finalize (for good) my Phd.

ECJ Ruling in British Airways

The ambitious effects-based approach of abusive rebates promoted by the Commission may never take-off. The ECJ upheld today the controversial ruling of the CFI in British Airways. Hereafter is the text of the press release:

Following a complaint lodged by Virgin Atlantic Airways about agreements between British Airways (BA) and travel agents relating to commissions and other financial incentives for the sale of BA tickets, the Commission commenced a detailed investigation.

BA then adopted a new performance reward scheme applicable from 1998. Nevertheless, Virgin lodged a second complaint with the Commission against that new system of financial incentives.

By a decision of 14 July 1999, the Commission condemned the agreements and incentive schemes established by BA as an abuse of its dominant position on the United Kingdom market for air travel agency services and fined it EUR 6.8 million. According to the Commission, the performance reward scheme had the effect of inciting United Kingdom travel agents to maintain or increase their sales in BA tickets, in preference to those of competitor airlines.

In December 2003, the Court of First Instance dismissed BA's action against that decision¹. BA lodged an appeal against that judgment before the Court of Justice of the European Communities.

The Court of Justice has today dismissed the appeal as in part inadmissible and in part unfounded.

The Court has stated that, in an appeal, it is not the function of the Court of Justice to substitute its own assessment of market data and the competition situation for that of the Court of First Instance. The appeal must be limited to questions of law. The assessment of facts is not a question of law which can be submitted to the Court of Justice for review. As a result, the pleas in which BA challenges assessments of facts and evidence by the Court of First Instance are inadmissible.

See here for the full text of the judgment.  Will comment later if I find free time. My gut feeling though, on the basis of a cursory review: the case does not say much, the ECJ sticks to its traditional reluctance to delve into complex economic assessments.

Nader-ism?

EU Consumer Protection Commissioner Kuneva, on Monday:

"Do you think it's fine that a CD plays in all CD players but that an iTunes song only plays in an iPod? I don't. Something has to change"

EU Consumer Protection Commissioner Kuneva, on Tuesday:

"[A]nnounced by consumer commissioner Meglena Kuneva on Tuesday (13 March) - is the introduction of collective redress [...] Stressing that collective redress is not "an invitation to be more litigious" Ms Kuneva said that the system established would be specific to Europe and not based on the US class action".

I can't wait till Wednesday...

Seminar on Bottlenecks in Digital Broadcasting

The Centre de Recherches Informatique et Droit (CRID - University of Namur), Cullen International and the Interdisciplinair Centrum voor Recht en ICT (ICRI - IBBT; K.U.Leuven) organize an intersting afternoon seminar dedicated to "Bottlenecks in Digital Broadcasting : The use of sector regulation and competition law to enforce access to decoders and content".

See link hereafter for a programme and registration form:

http://www.juritic.be/pages/pubconference22mars07.pdf

Thanks to Julien Jost for the pointer.

Slides on Pricing Issues in the Postal Sector

Please find hereafter a presentation prepared by Damien and I on pricing issues and competition law in the postal sector.  Damien spoke on the topic at the WIK conference, two weeks ago in Bonn.

Download pricing_issues_under_ec_competition_law_from.ppt

Tough Words

"The fact is the ACCC [the Australian Competition and Consumer Commission ]  ... is a rogue regulator that is drunk with power, abusing its power and needs to be reined in".

These tough words are quite unusual in our discipline. See link here for more.   

24th Lunch Talk of the GCLC - The Wanadoo Ruling in the Broader Context of the Article 82 Review

For its 24th lunch talk, the GCLC will have Thomas Janssens (Freshfields) and Rita Wezenbeek (DG Comp.) discussing the recent Wanadoo ruling on predatory pricing issues. Date is 27th of March, time and place as usual. Registration form hereafter.

Download registration_form_24th_lunch_talk_of_the_gclc.pdf

A blow, really?

The European Commission has decided to open a phase II investigation into the merger between Sony and BMG. Recall that the earlier decision approving the merger in July 2004 was annulled by the CFI last summer. The CFI went quite far in that case, allowing the Commission to indirectly prove the existence (prior to a merger) of collective dominance in a given industry. A few months ago, I questioned whether the annulment was really a blow for the Commission, as was argued by certain observers. In fact, today's decision may confirm my early analysis :). The CFI's ruling relaxes the constraints which in the past prevented the Commission from threatening the music majors' oligopoly (sthing which the Commission had unsuccesfully tried to do in previous merger decisions). Today's decision raises further the risk that the Sony/BMG merger be jeopardized long after its implementation, paving the way to heavy ex post deconcentration measures (which would either come from a prohibition decision or from modifications submitted by the parties during the procedure).