The European Commission’s positions on inability to pay competition fines, and on the failing firm defence under the merger regulation are superficially different, but the underlying policy concern is the same. The Commission’s 2006 Fining Guidelines envisaged the possibility that some fines ought to be reduced if a firm is unable to pay: “35. In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided […]
Most press comment has been on the Commission’s investigation into Google’s search practices. The Commission has another pending case, however, into Google’s handling of the Android operating system. Alfonso Lamadrid of Garrigues (disclosure: a friend) has written an excellent three part analysis of the complaints against Android lodged with the European Commission. Without commenting on any of his tentative conclusions, the articles highlight the issues to be considered better than anything else you’re likely to read unless and until the Commission makes a decision. (And I know that some will say “even after any Commission decision…”) Post 1 on background + market definition Post 2 on predatory pricing claims Post 3 on the bundling allegations There’s then a guest post […]
Two years ago I wrote a short article (which I recently republished here) on why reducing competition fines because a company had a compliance policy would be a mistake. Since then, I’ve changed my mind. But only on the reasoning, not the result. At least for now. And I may change it again. There is fairly profound disagreement on this point between the Commission and many companies (and their advisers). The Commission does not want to give fines reductions for companies that have a compliance programme in place; companies believe that investing in a compliance programme should be recognised by the Commission by a reduction in fines. The disagreement could be simply because companies that have put in place a […]
Several recent Commission cases and Court judgments suggest a new way of looking at some abuse cases – as a form of estoppel. The Court of Justice’s preliminary ruling in Telia Sonera, holding that a margin squeeze can be abusive even absent a duty to supply, has come in for some heavy criticism. If there is no antitrust obligation to supply, critics argue, how can the terms of supply be abusive? Telia Sonera contrasts markedly with the position of the US Supreme Court in LinkLine (PDF) which holds that margin squeeze is not a self standing abuse under the Sherman Act, though the minority opinion of Breyer does leave open the possibility that a margin squeeze might be unlawful if […]