The Antitrust Hotch Potch

The new General Block Exemption Regulation for State aid: State aid for the people?

On 7 July 2008, Commissioner Kroes announced  the adoption by the Commission of the new General Block Exemption Regulation for State Aid (“GEBR”). Following the debate initiated by the 2005 State Aid Action Plan, the GEBR repeals the five previous exemption regulations dealing with aid to SMEs, Research and Development (“R&D”), employment, training and regional aid.

The text will likely induce a reduction in the State aid enforcement workload of the Commission. A whole bunch of aids that were previously subject to the notification procedure are now expressly exempted (i.e. those aids that were deemed compatible under the various Guidelines). Meanwhile, and less blatantly, the GEBR marks a subtle intrusion of the Commission in Member States’ economic policy. In much the same vein as the old-generation Article 81(3) block exemption regulations, the GEBR provides a raft of “straightjacket” safe harbors which hold the potential to standardize national intervention in a myriad of policy fields (e.g. environment, R&D, risk capital, disabled workers, or women entrepreneurs, etc.).

In addition, the “visual” effect of the GEBR is of utmost relevance. At first glance, the reader is faced with an impressive inventory of aid-related issues, all of which are cleared from Commission’s scrutiny (subject to the observance of the various substantive conditions subsequently set out by the regulation). Temptation will then be great for national policy-makers to simply pick and choose within this list and then carefully follow the “user’s manual”.

The benefits are therefore two-fold for the Commission. First, it gets rid of a considerable amount of dull administrative work. Second, it makes sure that an increasing number of national measures will follow the guidelines that it itself designed. Greater compliance coupled with less paperwork, or the epitome of enforcement efficiency.

Yet, the primary achievement of the GEBR lies elsewhere. By exempting national subsidies for the environment, SMEs, women entrepreneurs or disabled workers, the European watchdog demonstrates that it is not locked in an ivory tower, and that the daily life of European citizens is the driving force behind its policy initiatives. “State aid for the people”, in a way…

Alexis/Nicolas

PS: For the next months, Alexis will be our co-blogger. Alexis is a French Lawyer who graduated a year ago from the College of Europe. He is a specialist of state related aspects of EC competition law. A most welcome addition to our blogging capacities!

PS2: any clue as to the gentleman on the above picture (source: wikipedia)?

Lost

A reflection that springs to mind, while working on a sunny Sunday afternoon:

Was the Article 82 Review on Oceanic Flight 815???

Nicolas

CRESSE Material

The CRESSE 2008 CONFERENCE MATERIAL (to which Damien participated) has been posted here.

US(-er friendly) Antitrust Law

Have 15 minutes to spare?

Want to get a quick background in US antitrust law?

The US Federal Trade Commission just released a useful Internet "Guide to US antitrust law" which is well-worth reading.

Nicolas

Is Fender RPMing?

I have devoted my Saturday afternoon to the purchase of a brand new bass guitar. After a few ramblings in downtown Brussels, I eventually spot a Fender Jazz Bass (Mexican version) which both sounds and looks perfect.

Problem though, its official retail price is €600, far beyond my reserve price, approximately €500. Since discounts are customary in the market for music instruments, I try my luck and asks for it. The guy in the shop tells me he must "check" and starts typing on his computer. I ask him what he is doing and he explains that he is typing the serial number, because for each Fender instrument, the discount is apparently set in the system (I infer from what he tells me that the system is designed by Fender itself, but that would deserve a check). Unfortunately, the mininum price for my Jazz Bass is €600, and the guy tells me he "cannot" go lower.

I ended up buying an Ibanez bass guitar from another shop... and thinking of potential unlawful RPM practices on a Saturday afternoon (a Commission decision from 2003 found Yamaha guilty of RPM practices on the market for music instruments).

Nicolas

Picture source: http://www.musiciansfriend.com/

LL.M. in Competition and IP Law - New Programme/Brochure

As some of you may already know, I am the director of the LL.M in competition and IP law at the University of Liege (Belgium). We have just received the new brochure (see link at the end of this post) and I take the opportunity to make a little advertisement for the programme.

Our LL.M. is certainly unique here on the continent. Not that it is priced at a level that is almost predatory. Rather, it exhibits a number of other features which make it - in my opinion - a 5* education programme:

• Focus and exhaustiveness of the courses:  ranging from general IP and competition law to economics of competition law, market regulation in the pharmaceutical/food sector, competition and IP, patent law, etc.;
• Teaching team boasting academics and high-profile practitioners - J.Y Art, J.F. Bellis, J. Derenne, JJ. Evrard, D. Hull, A. Strowel, G. Van Overwalle, P. Wautelet, etc.;
• Numerous extracurricular activities - the many conferences and seminars we had this year were made possible thanks to the support of the students. Our students also write case summaries in the E-competitions online bulletin;
• Proximity from Brussels;
• The vast majority of our students finds a job prior to the end of the LL.M.

Please do not hesitate to contact me, should you have any queries on the programme. Our admission requirements have so far proven quite flexible and we aim at attracting students from everywhere inside and outside Europe.

Download brochure_llm_final_version.pdf

Nicolas

The antitrust encyclopedia

A truly great initiative, by I. Kokkoris (OFT) and N. Charbit (Concurrences): the antitrust encyclopedia. Check it out there.

The 1.000.000$ Question

Private parties are often reluctant to challenge EC institutions decisions. The main reasons for this are as follows:

• Restrictive principles re. locus standi;
• Restrictive definition of the acts that can be subject to annulment proceedings;
• Rise of a new "settlement culture" (i.e. through  procedural settlements, commitments, leniency and so on).

That situation is open to criticism, if only because it renders the EU system of judicial protection ineffective.

In light of the CMB judgment, handed down yesterday, we believe that the ineffectiveness of judicial protection could be further aggravated by the Community courts themselves. In certain fields of competition policy such as e.g. Article 82 EC, the CFI and the ECJ have consistently refused to recast the Commission's analysis. The table below shows that the vast majority of annulment actions brought against Article 82 EC decisions have been dismissed by the Court. The standard of judicial review applied by the CFI on Article 82 EC exhibits a strong sense of deference with respect to Commission analysis and, in turn, discourages potential applicants from seeking relief before the Community courts. 

The 1.000.000$ question now: who will be the first in a decade to win an Article 82 EC case before the CFI?

Nicolas / Alexis