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 […]
(This post is the first in a series discussing mistakes both sides make in competition cases: see the introduction and as always don’t forget the disclaimer.) Playing the man, not the ball is a mistake more often – but not exclusively – carried out by the private sector against the Commission. It likely happens when the case team is perceived as sufficiently obdurate that further discussions with the case team are pointless. Complaining loud and long, often in public, about the obduracy of the case team seems to be a rational next step, but will usually be a mistake. This is probably a mistake even if the case team is actually being obdurate. Rather than attacking the team, the better […]
The [other side] always gets things wrong; if only the [other side] could make fewer mistakes, or be more trustworthy, or more open, then everything would move along more easily. This is a common feeling among those who work on competition cases (and pretty much anthing else). Though the definition of the [other side] will of course vary depending on who [my own side] is. This is a short introduction to (hopefully) a series of posts on what those mistakes are, which side (if any) makes them the most and why, and how (hopefully) they can be avoided. In real life, it’s more complicated than “us” and “them”. A private practice lawyer has duties to the client and to the […]
Not all Commission decisions have the same value. For any particular point of law or economic analysis, some are more valuable precedents than others. Merger control provides a good example. Phase one merger decisions are not necessarily reliable when it comes to assessing the gravity of the competition problem, or the appropriateness of the remedy. For example, I was in a case several years ago where, based on the parties’ own projections, the merged entity would have a commanding market share. The Phase I investigation suggested that the projections were plausible. However, there was a real chance that a more detailed investigation would show that the concerns were not borne out – the market was rapidly developing, entry by other […]