Coordination and information exchanges in financial markets. What comes first the chicken or the egg?

Intervention by competition authorities in financial markets is a complex and delicate task, given that financial service providers act not only as competitors but also as counterparties, intermediaries, and cooperation partners. In this context, contacts and information-sharing are necessary to create efficiencies such as the reduction of capital costs and transaction costs, or innovation and risk management.

This paper published on IE Legal Hub – Law Ahead explores the different approaches that have been proposed to tackle illegal coordination without hindering necessary information flows.

For instance, competition authorities in the United Kingdom (UK) have shown more willingness to characterise information exchanges as restrictions by object in themselves without need to identify an overarching agreement but relying on the presumption of causal connection to subsequent conduct.

Contrariwise, the European Commission appears to treat information exchanges as instrumental to broader pre‑existing coordination rather than ascertaining whether they could effectively constitute concerted practices in their own right. This would arguably relax the standard for information exchanges to constitute concerted practices – which might have already resulted in at least one judicial setback in case T-180/15 Icap and others v Commission.

Besides, the Spanish and Portuguese authorities have opted for a more nuanced approach, respectively, by placing the emphasis on the competitive outcome of the joint setting of conditions by competitors, and by accepting commitments in order to preserve potentially efficient information-sharing systems.

The Android of dawn

Last July the Commission struck back on Google with record fines, just like in summer 2017. On this occasion, Mountain View’s famous replicant was targeted by Berlaymont’s blade runner to cut short excessive optimism about Intel’s new dawn[1]. Indeed, the Android decision[2] joins Qualcomm (exclusivity payments)[3] in post-Intel Article 102 enforcement, their full versions not having been published yet. However, some light has already been shed on the way in which the EU trustbuster is interpreting the Court of Justice’s guidance in the seminal judgement on the chipmaker’s exclusivity payments and, more generally, on whether the more-economic approach is to be expected in digital world abuses.

This paper supplements the post Do androids dream of exclusivity with a conclusion on whether the Android decision should be read as a new setback to the long-awaited more-economic approach to abuse of dominance. Food for thought until the full decision comes out, in which we will see if the Commission interpreted the Intel ruling in the sense of requiring a full-fledged analysis of anticompetitive effects and efficiencies to invalidate Google’s. If this is the case, the battle for a digital approach to abuse enforcement might not be lost yet.

The Android decision: Is the EU blade runner seeking to retire the more-economic replicant?

[1] Judgement of the Court of Justice dated 6 September 2017 in case C-413/14 P Intel v Commission.

[2] Decision of the European Commission dated 18 July 2018 in case AT.40009 Google Android.

[3] Decision of the European Commission dated 25 January 2018 in case AT.40220 Qualcomm (exclusivity payments).

Has the Spanish Competition Authority found a way out of project finance antitrust maze?

Project finance has fallen under the spotlight of competition authorities as traditional antitrust concerns over competitors’ joining forces have met with increasing worries about financial customers suffering from information asymmetries.

Against this background, pricing, and more precisely “market conditions”, has been the thread pulled by the Spanish trustbuster to unravel, felicitously or not, the long entangled knot of syndicated loans and financial derivatives in its recent Financial Derivatives decision.

In this article, the three limbs of the decision will be discussed: loan syndication as a cooperation agreement among competitors, price coordination, and loan and hedge tie-in.

Syndicated loans and financial derivatives: ‛Belling the cat’ of market conditions

Google Search. Shopping for an appropriate abuse standard

Now that Google and the Commission are at daggers drawn in Luxembourg over the 27 June decision in Google Search,[1] it seems like high time to make our educated guesses about how the recently disclosed arguments in the tech giant’s September appeal[2] will come into play. Therefore, this post is a sort of an update (or a plug-in) to my recent paper EU Competition Law Needs to Install a Plug-in,[3] which for better or for worse was submitted one day after the Commission’s decision was adopted and it was published five days before we had the first news of Google’s bringing the case before the General Court.

As anticipated, Google’s appeal will revolve around the claim that the theory of damage behind its conduct was that of an essential facilities case, while the Commission found it abusive below the refusal to deal threshold. As a matter of fact, Nicholas Banasevic (head of the unit responsible for the Google case) has made clear that the June decision is ‘a very detailed effects-based decision‘ in a ‘plain and simple leveraging case,’ without there being any need to ‘apply another “label” to it, including abuses such as “refusal to supply” rivals.’[4]

Banasevic’s assertion implies that the Silicon Valley company’s leveraging on its dominance in general search to artificially favour its own products in an adjacent market would suffice to be found abusive, as far as the (actual or potential) anticompetitive effect is supported by a fair deal of evidence. No wonder, Google’s reaction would be trying to bring the discussion to the field of legal standard by pleading that the Commission’s move away from the refusal to supply test constitutes an attempt to lowering the abuse threshold below the essential facilities requirements of indispensability and removal of effective competition.

Against this backdrop, it must be recalled that the long-drawn Google Shopping battle, the first chapter of which was brought to a close by the June decision, touches upon a number of de lege lata and de lege ferenda questions. Indeed, it tables both the debate over the adjustments required by competition law of the European Union to be able to deal with the challenges of the digital environment and the traditional controversy about the limits of competition authorities’ say in dominant companies’ business models.

Continue reading “Google Search. Shopping for an appropriate abuse standard”

Vestager’s razor to cut the ordo-liberal knot

To turn the page on more than forty years of quarrel over whether antitrust is about protecting the competitive process without prejudging its result or about ensuring that markets have a competitive structure (thereby tipping the balance towards a particular market outcome), Commissioner Vestager has finally applied Ockham’s law of parsimony. In front of the European antitrust establishment attending the Chillin’ Competition conference last 21 November, the Commissioner heralded a return to the exploitation origins of EU competition law. Continue reading “Vestager’s razor to cut the ordo-liberal knot”

Has the Commission let slip the watchdogs of war?

E-commerce is no longer the last frontier of antitrust law, but rather the battlefield of a war which is already being fought on many fronts. On the trustbuster’s side, the Bundeskartellamt’s purposeful and self-proclaimed leadership as regards vertical restraints on the use of online marketplaces has recently met with the Commission’s slowly but steadily coming back into play from its initial indolence (as proven by the Preliminary Report on the e-commerce sector inquiry published on 15 September 2016), and its recent alliance with the French authority (whose help the EU watchdog has sought to carry out probes in the e‑commerce sector).

At any rate, the rules of this regulatory game will be set by the judges in Luxembourg, already questioned by the German judiciary whether selective distributors at the retail level can be lawfully barred from enlisting online sale-handling services of third-party platforms discernible to the public, regardless of the supplier’s quality standards (request for a preliminary ruling in case C-230/16). On the undertaking’s side of the house, Amazon has asked to be heard in the case as a golden opportunity to tip the scales in favour of retailer’s freedom to sell products on marketplaces.

Although the focus is clearly placed on retailers’ ability to use marketplaces, until the ECJ delivers its verdict the Italian Autorità Garante della Concorrenza e del Mercato (which seems to like riding high on the Booking.comExpedia wave), has availed of the tense interlude to streamline the online booking sector again by launching a monitoring project. This project aims at gauging the implementation of the commitments made by Booking.com and Expedia in partnership with other nine National Competition Authorities (Belgium, Czech Republic, France, Germany, Hungary, Ireland, Netherlands, Sweden and UK).

This landscape having paved the way for a bit of self-promotion, I will take the opportunity to present my recent publication in the European Journal of Legal Studies with the headline: ‘Price parity clauses: Has the Commission let slip the watchdogs of war? Continue reading “Has the Commission let slip the watchdogs of war?”

The bonfire of the vanities 3.0

Google doesn’t seem to have expiated its sins as Berlaymont’s crusade is about to become a Seven Years’ War. This week, we have witnessed with weary amazement Mountain View’s questing beast being struck by two new charge sheets: a supplementary statement of objections that persists restlessly in the unpalatable self-preferencing theory of harm and a brand new accusation of limiting third-party websites’ ability to display advertisements from rival online advertising intermediaries. Thus, a third limb has now been added to Vestager’s admonition barely three months after the tech colossus was made aware of her concerns over Android (see ‘Do androids dream of exclusivity?’). Continue reading “The bonfire of the vanities 3.0”

Do androids dream of exclusivity?

Almost fifty years ago, Philip K. Dick wondered whether androids dreamt of electric sheep as a way of reflecting on robots’ ability to develop feelings and on humankind’s entitlement to doing away with machines showing this dangerous anomaly. Almost thirty years ago, Ridley Scott brought this moral debate to the big screen in a film featuring Harrison Ford ‘retiring’ human-like ‘replicants’. Now, the Commission, as a modern antitrust blade runner, is seeking to ‘retire’ an Android which seems to have developed overambitious feelings.

As a matter of fact, this ambition of Google’s mobile app business gave Vestager a reason not to break with the tradition of giving the technological giant an April shower. One year after the charge sheet on Google Shopping (see ‘Alternativlos!’), Mountain View was hit with a brand new statement of objections focussing on Android. On this occasion, Google was preliminarily suspected of using its operating system to carry out conducts falling within the shabby boxes of tying and exclusive dealing. Continue reading “Do androids dream of exclusivity?”

Alternativlos!

‘Alternativlos!’ The deterministic slogan of the pensée unique in its English version, and proclaimed worst word of 2010 in Goethe’s language for not so different reasons, has been turned by Mathias Döpfner into the war cry of Google’s foes. Indeed, in a letter addressed to Mountain View that has gone down in history of antitrust yellow press, Axel Springer’s Chief Executive Officer came up with an apocryphal theory of harm that the eager EU trustbuster seems to have fallen for. In April 2015, Berlaymont took another shot at the tech leviathan aiming at a business that one would not consider precisely flagship: its comparison shopping service. Continue reading “Alternativlos!”

Actual competition. Going digital and beyond

Over the last two years, during which I really got introduced to the competition law world, I copped onto at least three remarkable things. The first one is that there is a tendency for EU and national trustbusters and judges across the board to grasp at straws by sticking to a stale legal framework that has never been so clearly obsolete as it is now in the digital era. In stark contrast stands the second one, that is, the unprejudiced view that I’ve spotted in many not-always-so-young with the strange habit to think out the box. As a glimmer of hope in this paradoxical picture, the third is the realisation not only that innovative ideas may have more value than we think but also that they can be put forward by the same ‘disruptive’ means that are pushing the outer boundaries of the antitrust tectonic plate. Continue reading “Actual competition. Going digital and beyond”