Alfonso Lamadrid de Pablo and Pablo Ibañez Colomo, the driving force behind Chillin’Competition blog, world’s favorite source for the latest and greatest in competition law, have once again one-upped themselves to ensure that the third iteration of the Chillin’Competition Conference is its greatest one to date. In fact, the event attracted so much attention that the lead up to it almost caused the Twittersphere, and some other places, to blow up (pun indented).
Fake news…or is it?
Kidding aside, the third annual Chillin’Competition Conference once again gave us an unparalleled array of distinguished speakers, who offered participants an incredible range of topics, and a variety of opinions on them, as presented below, as well as a refreshing take on the key events of the past 12 months.
Alfonso Lamadrid opened the conference by reflecting on the biggest events (such as Donald Trump’s presidency and Brexit) and sharing some recent [fake] news & updates, including what we learned in the past year before delivering a more positive assessment of the 2017: The Court does listen.
Chillling Competition 2017 – Introduction (A. Lamadrid)
Before sharing some deeper insights on panels and topics covered at the conference, we would like to reflect on the real MVP of the event – the incredible team that touched our hearts and bellies with the incredible selection of Syrian specialties We Exist”. As the organization states, “We Exist” is an NGO created by a mixed team of volunteers: people who have lived through the war in Syria and obtained refugee status in Belgium as well as migrants from other countries. The goal of the association is to facilitate the integration of asylum seekers and refugees into the labour market. This challenge is bigger than any one individual, company or state – but the responsibility to act lies with each and every one of us. As the Commissioner Vestger later highlighted in her interview for Wired, by utilizing “We Exist” to serve food at the third Chillin’Competition conference, organizers showed by example how citizens can make a difference in their community (link, see minute 28 of the interview). So once again, congratulations to Alfonso and Pablo for setting the best possible example of how it’s done!
The 1st panel moderated by Kevin Coates (Covington & Burling), included the following panelists: Pascale Déchamps (Oxera), Kyriakos Fountoukakos (Herbert Smith Freehills), Damien Geradin (EUCLID) and Sasha Schubert (Freshfields).
Although the title of this panel was ambiguous, it perfectly described the topic: non-competition concerns in competition law.
Mr. Schubert began the discussion by sharing thoughts on non-competition concerns regarding merger control, and comparing standards of public interest implemented in the merger control process in a number of countries (such as public interest remedies implemented in South Africa, Botswana and Ecuador) and consumer welfare standard implemented in Europe, as a predictable standard specified in legislation. The discussion that followed gave the panelists an ample opportunity to share their views on the competition test, based on economic efficiency as the best solution. Further, Mr. Fountoukakos focused on the: (i) exploitative abuse in terms of consumer protection, with special emphasis on excessive pricing in pharma sector and (ii) data protection.
The Commission initiated the first excessive pricing investigation in the pharmaceutical sector into certain alleged excessive pricing practices pursued by Aspen Pharmacare over claims that the drug company raised prices of five cancer medicines up to several hundred percent and withdrew drugs from certain markets to impose said hikes (Italy’s competition authority imposed a EUR 5 million fine on Aspen last year, after determining that it had abused its market position by raising prices). With respect to data protection, the panel concluded that competition may not be the best tool, and that balance between public interest and competition objective should be made.
In addition, another two topics made the cut for the first panel. Namely, commitment decisions were argued given that excessive reliance on these procedures may have some downsides in complex cases, with a possibility that they may actually undermine the evolution of case law, as it is rarely subject to appeal. Finally, some assessments were given on food as the topic, and panelists emphasized that a balance between producers and retailers must be made, with competition on both sides.
Chilling Competition 2017 – Competition Law Everywhere
The 2nd panel, moderated by Niall Collins (Mason Hayes & Curran), included the following panelists: Beatriz de Guindos (Comisión Nacional de los Mercados y la Competencia), Philip Marsden (Competition and Markets Authority), Eddy de Smijter (European Commission) and Jacques Steenbergen (Belgian Competition Authority).
Mr. Eddy de Smijter, who emphasized divergences in competition enforcement and gave advice to inform divergences, made the introduction into the discussion. Furthermore, the topic of divergences in the competition enforcement was focused on EU candidate countries and communication between acceding countries and the Commission based on the accession agreements. Following the introduction, a great presentation was made by Mr. Philip Marsden, underlining 10 rules for competition authorities, of which the most attention was drawn to: capable means likely (expansion of the “object” category of competition infringements) and competition authorities are not here to help small ones to catch up with bigger ones. Mr. Jacques Steenbergen stated that fairness represents the center stage in terms of regaining consumers’ confidence and the interest of stakeholders. It was emphasized that competition is what society needs. Finally, in terms of the efficiency of national competition authorities, the panelists gave an example of the Spanish competition authority. The subject authority merged with six regulators in 2013 and now represents an immense institution. Nevertheless, it does not represent a perfect system and internal changes in the future are necessary.
Chillin Competition 2017 – The Real Centre Stage
The 3rd panel “Ted@Chillin’Competition“, included the following panelists: Pablo Ibañez Colomo (LSE, College of Europe and Chillin’Competition), Kay Uwe Kühn (University of East Anglia and CRA), Miguel de la Mano (Compass Lexecon), Mark Powell (White&Case) and Antoine Winckler (Cleary Gottlieb).
Overall, panelists exchanged ideas and views mainly regarding threats to competition law, as well as on politics and populism. It was stressed that competition law became aggressive and intrusive in terms of enforcement and that voluntary merger filing could be a step in the right direction, although competition authorities are addicted to merger control.
Mr. Kühn discussed in greater depth the idea of price-fixing in the 21st century, with particular focus on algorithms and their potential impact. Namely, simply showing an algorithm is the equivalent of showing the whole strategy for future pricing – which is illegal. Following an in-depth look at a number of potential scenarios under which algorithms could be used purposely or otherwise, as a tool to circumvent the existing framework, Mr. Kühn proceeded in Musk-ian fashion to warn us about our future robot overloads. Mr. Winckler of Cleary Gottlieb took on the importance of antitrust and delved deep into the reason why it does, and why it may not, have a future. He analyzed in certain depth the potential antitrust bubble, and argued on what are the external and internal factors that may be behind it. Looking at external factors (political risks), among other things, he reflected on the fact that antitrust is still not at the center of political/public confrontation, and concluded that although antitrust should be expected to reach new heights, it may not turn out that way. On the other hand, internal factors (uncertainty & aggressiveness) reflected on the increasing complexity of antitrust rules, which inevitably lead to more uncertain results given less transparency and the ability to tell clients what to expect. Mr. Powell’s unusually frank speech pointed out the fact that antitrust may have developed into a bubble in which everybody is doing very well without perhaps contributing much to society. Mr. de la Mano gave us a positive note, arguing that competition in Europe is a shining example of what can be achieved when people from different nations collaborate with a common goal to protect common values, with a warning that without competition, capitalism carries the seeds of its own destruction.
ChillinCompetition 2017 -Antitrust as an Endangered Practice (A.Winckler)
Keynote speaker Margrethe Vestager, the Commissioner for Competition, delivered a speech stressing that competition represents power in hands of consumers and should encourage companies to be more efficient. The Commissioner emphasized that strict regulation is necessary for consumer welfare and provided an example of the approved merger between Dow and DuPont (after the companies agreed to sell large parts of DuPont’s pesticide business) in order to show how the Commission can help steer innovation in the right. Reflecting on the topic of environment and the role of competition in this field, Ms. Vestager indicated that the Commission is working on new rules on carbon dioxide emissions, which should set standards for cars and vans after 2020, as well as the first-ever standards for trucks. She gave a clear message that competition and regulation should work together because only in that case the result would be a market that really serves the needs of people. Finally, the importance of cooperation with national authorities was underlined and it was emphasized that in the case of extensive powers of national competition authorities a higher level of precaution is essential.
The 4th panel, “Mergers and Disquisitions “, moderated by Susana Cabrera Zaragoza (Garrigues) and Paul McGeown (Wilson Sonsini), included the following panelists: Gavin Bushell (Baker & McKenzie), Catriona Hatton (Baker Botts), Adrian Majumdar (RBB) and Michele Piergiovanni (European Commission).
Discussion during this panel was primarily focused on the assessment of research and development mergers (R&D). The concern is that a merger may have an impact on innovation where the merging parties are two, of a very limited number of firms, that can develop new products in a particular field. This is especially the case with mergers involving important innovators in industries with high barriers to entry, which are likely to result in a reduction in innovation, and the number and quality of new products. In Dow DuPont case the Commission was focused on innovation and R&D activities, as the parties are two of the five key players (the other three being Bayer, BASF and Syngenta) active globally in pesticides R&D. Panelists agreed that the innovation market is complex and complex assessment in this matter is fundamental.
The final panel, “Looking Ahead”, moderated by Peter Alexiadis (Gibson Dunn), included the following panelists: Luca Crocco (Latham & Watkins), Natura Gracia (Linklaters), Pola Karolczyk (Sidley Austin), Jürgen Schindler (Allen & Overy) and Gianni de Stefano (Hogan Lovells).
The discussion reiterated several points: (i) cooperation of lawyers specialized in different fields in terms of new technology issues (ii) data protection, expansion of conglomerate mergers (7 cases in 18 months compared with zero cases in 15 years) and impact of Brexit on UK competition law (50% increase in workload, less EU cases, lower thresholds for merger notifications). Ms. Karolzcyk briefly looked at the Blockchain technology, suggesting that the technology is already here and that it has antitrust implications. Mr. De Stefano took the discussion in a slightly broader direction, reflecting on the 4th industrial revolution, the technological one, and a plethora of challenges we are yet to face as technology progresses, becoming more integrated in every part of our daily life. Mr. Crocco’s presentation centered around the question of whether conglomerate mergers becoming a problem, which are in all likelihood here to stay, discussing in detail EC’s focus on bundling in merger reviews. He concluded, unlike what the EC representatives have stated, that 4 conditional Phase I and three Phase II in 18 months are not a coincidence, discussing both substantive and procedural causes behind it.
Chilling Competition 2017 – Blockchain – the next great disruptor (P. Karolczyk)
Chilling Competition 2017 – Connected Cars (G De Stefano)
Chilling Competition 2017 – Conglomerate Mergers (L. Crocco)
Chilling Competition 2017 – Intel Back to the Future (J.Schindler)
Chillin Competition 2018 – Brexit (N. Gracia)
For the third time, the Chillin’Competition conference succeeded in facilitating discussion on a number of challenging topics that will remain at the front and center in competition law debates.
We would like to take this opportunity to thank the organizers, distinguished speakers, sponsors and all participants for the inspiring experience and for making this extraordinary event possible.
Disclaimer (sort-of): While we have made every attempt to ensure that the information contained in this review is 100% true to what was shared at the conference, we are not responsible for any errors or omissions, as there was not enough coffee, and the main authors were served vine a little too preemptively. We do remain at the fullest disposal for any participant who feels their input was omitted, misrepresented or would like to be removed from this review.
