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 […]
“There are two things wrong with almost all legal writing. One is its style. The other is its content.” This quote and the law review article it comes from (entitled “Goodbye to Law Reviews“) is new to me. I came across it via Edward Tufte whose superb books and website are also, for different reasons, well worth a read. Most – all? – of these brilliant criticisms from 1936 remain true today. Though I don’t think the problem is, as the New York Times argues, that US law reviews are student run, and I think the article misses a criticism that many scholarly law articles are simply too long and, in an attempt to be comprehensive, stray too far from the core […]