This was a fascinating webinar from @NERAconference on the abuse of dominance — changing tools, targets, and times?
@intel case, on appeal — CJEU found in Sept 2017 TFEU Art. 102 is not “sentimental” 😏 @EU_Competition continues to make case at the General Court (relating to as-efficient competitor test) — hearing in March, just pre-🦠
Intel CJEU judgment 1/ endorses “competition on the merits”; 2/ rejects per se assessments (Hoffman LaRoche is “clarified”) — firms can show evidence conduct lacks a foreclosure effect; 3/ AEC evidence must be assessed by Commission/GC; 4/ EU law necessarily conduct-specific
European competition law is moving even further towards an economically-focused approach. But courts need economists that can translate this for lawyers, for an effective marriage with legal imperatives. Carl Shapiro is a great example.
Ex ante: by adding new regulatory tools, you can introduce uncertainty. And: what does it change with incentives for companies, compared to an ex post penalty. You are simply shifting the burden of proof — fairness, and are you bringing a real benefit?
Prohibition on discrimination often mentioned. Protected characteristics work very well. But carrying this across to markets — applying discrimination criteria — can be complex. Not many cases so far, which have not illustrated this is straightforward. Making this ex ante doesn’t necessarily increase regulatory foreseeability or efficacy. Does this simply transfer costs to economists and lawyers, rather than increase societal good? Challenging for courts to get a full understanding of business models. IB: not even interim measures?
Intel, Shopping, Android, Adsense, and Qualcomm cases are all interesting to watch on standards for dominance. Also: willingness of General Court to scrutinise underlying factual findings (eg Intel and Apple). Broadcom — how abbreviated can interim analysis by EC be?
Great seminar (and speakers, also from Monckton Chambers). All five in the series available on the @NERA_Economics website 👏🏻