Author: Luis Blanquez
Makan Delrahim, Antitrust Chief for the United States Department of Justice, made news on June 1, 2018, when he announced that the United States will finalize and join the Multilateral Framework on Procedures in Competition Law Investigation and Enforcement.
Delrahim explained why due process is a priority for antitrust and competition enforcement: “With more than 140 competition agencies, and increased international commerce, including digital commerce, it is more and more critical that we share a common set of principles that affords due process to individuals and businesses in investigation and enforcement.” (p.2).
We applaud this effort and agree that companies—including those that do business on several continents and governed by multiple enforcers—should receive fair treatment worldwide by competition authorities.
In his speech, Delrahim mentioned the International Competition Network (ICN), among other groups, as likely substantive sources for the multilateral framework.
It just so happens that the ICN recently addressed this issue at its 17th annual conference, hosted by the Competition Commission of India on March 21-23, 2018. Indeed, the ICN adopted new guiding principles for procedural fairness in competition agency enforcement.
For those that are not familiar with it, the ICN is a network of 104 competition agencies, enriched by the participation of non-governmental advisors (representatives from business, consumer groups, academics, and the legal and economic professions), with the common aim of addressing practical antitrust enforcement and policy issues. The ICN promotes more efficient and effective antitrust enforcement worldwide to the benefit of consumers and businesses.
Because antitrust and competition agencies are now prioritizing due process, we will do a deep dive into the specific due process issues that the ICN described in its report.
One of the ICN’s several working groups is the Agency Effectiveness Working Group (AEWG). The AEWG aims to identify key elements of well-functioning competition agencies, including good practices for strategy, planning, operations, enforcement and procedures. To that end, the AEWG recently developed an ICN Guidance on Investigative Process paper, which offers helpful tips on investigative transparency and due process. This paper follows previous reports on Investigative Tools, Competition Agency Transparency Practices, and Competition Agency Confidentiality Practices.
Following these guidance reports, the AEWG has now produced new Guiding Principles for Procedural Fairness, together with some recommendations for internal agency practices and implementation tips for good agency enforcement process.
Following the two-day conference in India, the AEWG adopted the following Guiding Principles for procedural fairness in competition agency enforcement:
Competition agencies should conduct enforcement matters in a consistent, impartial manner, free of political interference. Agency officials should not have relational or financial conflicts in the matters on which they work. Agencies should not discriminate on the basis of nationality in their enforcement.
The AEWG highlights that agency officials should not have relational or financial conflicts of interest relevant to the investigations and proceedings they participate in or oversee. To ensure the impartiality of investigations and decision making, agencies should have ethics rules to prevent potential conflicts. And they should consider a systematic process to check for potential conflicts for all personnel working on a specific investigation.
Author: Luis Blanquez
As a US company doing business internationally, you might wonder what are the legal rules and procedures currently in place in the European Union to file an antitrust complaint.
First, you should understand that The Treaty on the Functioning of the European Union (TFEU) is based on the existence of a single market with free movement of goods and services throughout the European Union. The antitrust rules included in the TFEU, such as those against anti-competitive agreements, abuses of dominant position, certain problematic mergers and state aid, are essential to achieve that free movement.
Second, an important distinction from US antitrust law is that EU antitrust law is mainly enforced by public authorities: by the European Commission at EU level, and by national competition authorities (NCAs) at national level.
Third, EU antitrust law is also enforced—to a lesser extent—through ordinary litigation before the appropriate national courts of each Member State.
Last but not least, we shouldn’t forget that each Member State within the EU has also its own domestic antitrust rules, often mirroring EU rules, but sometimes with important procedural and substantive differences.
How the different antitrust laws are applied in the EU between NCAs, the European Commission and national courts, deserves an independent post on its own. For now, however, just keep in mind that as a plaintiff, you could also file an antitrust complaint in the EU before a national court.
In the meantime, if you want to know more about this issue, please see: (i) Council Regulation (EC) No 1/2003 on the implementation of the rules on competition, (ii) Commission Notice on the co-operation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (See more information here), and (iii) Notice on Cooperation within the network of competition authorities in the European Competition Network (See more information here).
Let’s return to our discussion on the application of EU antitrust rules by the European Commission. In the European Union, the Directorate General for Competition of the European Commission (“the Commission”), together with NCAs, directly enforces EU competition rules, Articles 101-109 of the Treaty on the Functioning of the European Union. The two most important articles, for the purpose of this post, are articles 101 and 102 TFEU.
Article 101 of the Treaty prohibits agreements between two or more independent market operators that restrict competition. It covers: (i) horizontal agreements between actual or potential competitors operating at the same level of the supply chain; (ii) and vertical agreements, between firms operating at different levels, such as an agreement between a manufacturer and its distributor.
Article 102 of the Treaty prohibits dominant firms from abusing that position, for example, by charging unfair prices, by limiting production, or by refusing to innovate to the prejudice of consumers.
HOW DOES AN ANTITRUST CASE START IN THE EU?
- The investigation
For Article 101 TFEU cases, the Commission and NCAs have important investigative powers under Regulation 1/2003.
The initiation of a Commission investigation might be the result of: (i) the Commission (or an NCA) launching an inquiry of its own initiative; (ii) a third party with information who approaches the Commission, such as a competitor or customer, (iii) a party to a cartel (or anti-competitive agreement) acting as a whistleblower under the existing leniency program, or (iv) when an NCA refers a case with a cross border element to the Commission through the ECN network.
Under Article 102, a case can originate either upon receipt of a complaint or through the opening of an investigation at the commission’s initiative.
Author: Luis Blanquez
In this article we describe EU investigations and enforcement actions that arose from the EC’s final e-commerce market study. While the final report itself offers companies doing business in the EU helpful guidance, the Commission’s actual conduct is perhaps an even better indicator of how the EC will implement what it learned.
Since the European Commission published its Final Report, it has opened investigation of about 20 companies.
Below is a summary of the relevant cases that the EC recently opened. We expect additional cases in the future in this area, both at EU and national level.
On February 2, 2017, the EC opened an investigation to analyze bilateral agreements between Valve Corporation, owner of the Steam game distribution platform, and five PC video game publishers: Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax.
This investigation concerns geo-blocking practices, where companies prevent consumers from purchasing digital content, in this case PC video games, because of the consumer’s location or country of residence. After the purchase of certain PC video games, users need to confirm that their copy of the game is not pirated to be able to play it. This is done with an activation key.
The investigation focuses on whether such agreements require the use of activation keys for the purpose of geo-blocking.
Clothing Company, Guess
On June 6, 2017, the EC opened an investigation against clothing manufacturer Guess. The EC is analyzing whether Guess’s distribution agreements impose cross-border sales restrictions on (i) retailers making online sales to consumers in other Member States, (ii) or wholesalers, selling to retailers in other Member States.
Interestingly, as a result, other clothing manufacturers such as Mango, Oysho and Pull&Bear have now started to review and revise their distribution agreements. Other companies, such as coffee machine manufacturer De Longhi, and photo equipment manufacturer Manfrotto, are doing the same (See here).
Hotel Pricing Discrimination
On February 2, 2017, the EC opened another investigation into hotel accommodation agreements between the largest European tour operators on the one hand: Kuoni, REWE, Thomas Cook and TUI, and Meliá Hotels on the other hand.
The EC encourages hotels to develop and introduce innovative pricing mechanisms to maximize room usage. But the EC is concerned that these agreements may contain clauses that discriminate among customers based on their nationality or country of residence. As a result, customers may not be able to see the full hotel availability, or book hotel rooms at the best prices, simply because of the consumer’s nationality or place of residence.
Licensed Merchandising Products
On June 14, 2017, the EC opened more investigations into the licensing and distribution practices of Nike, Sanrio and Universal studios. These three companies license intellectual property rights to manufacturers of merchandising products such as the Fútbol Club Barcelona, Hello Kitty and Minions merchandise, respectively.
The EC is concerned that these companies, in their role as licensors of rights for merchandising products, may have restricted the ability of their licensees to sell licensed merchandise cross-border and online.
Resale Price Maintenance cases
Consumer electronics manufacturers
The EC has opened another investigation against Asus, Denon & Marantz, Philips and Pioneer. In this case, the EC is concerned that the companies involved might be restricting the ability of online retailers to set their own prices for widely used consumer electronics products such as household appliances, notebooks and hi-fi products.
This is the first resale price maintenance case that the EC has initiated in a long time. Instead, the Member States themselves have scrutinized resale price maintenance at national level during the last decade.
Germany, for example, has recently published a new guidance note on resale price maintenance. The Competition and Markets Authority (“CMA”) in the UK also published additional guidance on these types of pricing agreements in the form of an open letter, a film, a 60-second summary, and case studies.
Indeed, the CMA recently fined National Lighting Company (NLC), a light fittings supplier, £2.7 million for restricting online prices. They also sent out warning letters to others in the industry. In 2016, the CMA also fined two other online companies for resale price maintenance practices: Ultra Finishing Limited (“Ultra”) in the Bathroom fittings sector and ITW Limited in the commercial refrigeration sector.
Author: Luis Blanquez
Over the past two years, the European Commission (“EC”) has been scrutinizing the e-commerce market of consumer goods and digital content in the European Union. This is a key step on the Commission’s Digital Single Market strategy to improve access to digital goods and services.
Such strategy includes legislation to promote cross border e-commerce through the following:
- The harmonization of rules for the supply of digital content and online sales of goods;
- A proposal to regulate geo-blocking;
- Copyright modernization rules aimed at facilitating access to digital content across borders and;
- A proposal to address unfair contractual clauses and trading practices identified in platform-to-business relationships.
In May 2015, the EC started in parallel its Sector Inquiry to identify possible competition concerns affecting European e-commerce markets. Its main purpose was to gather information on companies’ conduct and barriers to cross-border online trade, looking at online sales of consumer goods and digital content. In September 2016, the EC published a report with its preliminary findings, together with a Staff Working Document.
Finally, in May 2017, the EC issued its Final Report.
You can read our follow-up article to this one about ongoing EC enforcement actions arising out of the E-Commerce Report.
- RELEVANT FINDINGS
The EC outlines in the Final Report what it considers as the key issues in the field of e-commerce. It acknowledges the changing characteristics and fast-growing tendency of a sector with an increasing economic role in today’s economy. It further identifies business practices and barriers that could restrict competition and limit consumer choice.
The EC reviewed more than 2,600 agreements concerning the distribution of goods in the EU, and received more than 6,800 licensing agreements from digital content providers and rights holders. The main findings in the Final Report differentiate between consumer goods and digital content.
(A) CONSUMER GOODS
Contractual Restrictions on Cross-Border Sales: Geo-Blocking
The Sector Inquiry identifies contractual restrictions between operators in the online market that the EC believes could cause problems. Unilateral decisions by non-dominant firms, however, fall outside the scope of EU competition law.
But before telling you which contractual restrictions are problematic, let me explain first what the term “geo-blocking” means. Basically, it refers to practices that prevent cross-border sales in the EU. These include the following:
- Blocking access to websites by users located in another Member State—for example when a customer located in Madrid tries to acquire a product via a French website, and is prevented from doing so because the website has been blocked due to its Spanish IP address;
- Automatic re-routing of a customer to another website of the same or a different service provider—for example when a customer located in Madrid trying to access a French website is directly re-routed to the company’s Spanish website; or
- Payment refusals based on the place of residence of the customer—for example when the payment to the French website is refused because the credit card used is linked to an address in Spain, or the delivery to Spain is denied based on the customer’s residence.
So back to the relevant contractual restrictions now: The EC is concerned about how retailers face contractual restrictions from suppliers, which prevent such cross-border selling on-line.
These questioned agreements are ones that (i) are not covered by the EC “safe harbor” under the Vertical Block Exemption Regulation (“VBER”) – this is if parties to the agreements have market shares above 30%, or there are hardcore restraints involved, (ii) preventing cross-border sales between Member States in distribution agreements, may infringe EU Competition rules.
Restrictions on the use of online marketplaces
An online marketplace is a website that facilitates shopping from different sources, such as Amazon or eBay.
An absolute ban on online selling is considered a hard-core restriction under EU law. There is, however, an important ongoing debate in Europe as to whether an absolute ban on selling via marketplaces is contrary to EU rules.
In Germany, the Bundeskartellamt issued an infringement decision against Asics on its ban to sell via online marketplaces. In April 2017, the Dusseldorf Regional Higher Court found that only the price comparison tool restrictions involved in the case were anticompetitive.
At EU level there are currently two preliminary rulings pending. One the Coty case, where the high EU court has been asked to analyze the restrictions imposed on a selective distribution agreement by manufacturer Coty on one of its authorized distributors to sell products via third party online platforms. The second one is the Samsung and Amazon case, concerning a ban on resale outside a selective distribution network and on a marketplace, by means of online offers on several websites operating in various Member States.
In its Final Report, the EC does not consider marketplace selling bans as hardcore restraints. It may, however, still scrutinize them on a case by case basis, if parties to the agreements have market shares above 30%, or there are hardcore restraints involved, according to the VBER.
Selective distribution agreements: Requirements for brick-and- mortar shops
Contractual requirements to operate at least one brick-and-mortar shop under a selective distribution agreement are compatible with the EU competition rules, as long as they are linked to quality or brand image.
The EC, however, states in its Final Report that brick-and-mortar shop requirements imposed for the sole purpose to exclude online operators from the market, may infringe EU competition rules.
Pricing restrictions: Resale Price Maintenance (“RPM”) and Price collusion
E-commerce has significantly increased price transparency, competition on price and opportunities for users to compare different options in the internet. According to the EC’s investigation, almost 30% of manufacturers systematically track resale prices: 67% track resale prices manually, whereas 38% use specific software (spiders).
The Final Report highlights that this may also increase the risk of RPM or collusion between competitors.
Resale Price Maintenance (RPM)
The imposition of minimum resale prices is considered a hardcore restriction under EU Competition law. Similarly, when manufacturers seek to enforce compliance with recommended prices through contractual restrictions or some form of coercion, they may also infringe competition rules.
The EC is concerned that online price transparency may facilitate such practices, making it easier for manufacturers to detect deviations and enforce RPM provisions.
Price fixing between competitors is considered one of the most serious infringements under EU competition rules.
The Final Report found that almost 50% of retailers track online prices of competitors, and 78% of them use software to monitor rivals’ prices, adjusting their own prices accordingly.
The EC is thus concerned that price monitoring may facilitate or strengthen collusion between retailers, by making the detection of deviations from the collusive agreement easier, while allowing them to counteract by adjusting their prices.
Author: Luis Blanquez
Luis Blanquez is an antitrust attorney at Bona Law with fifteen years of competition experience in different jurisdictions within the European Union such as Spain, France, Belgium and the UK.
Article 102 TFUE
In the European Union, the Directorate General for Competition of the European Commission (“the Commission”) together with the national competition authorities, directly enforces EU competition rules, Articles 101-109 of the Treaty on the Functioning of the European Union (TFEU).
Article 102 TFEU prohibits abusive conduct by companies that have a dominant position in a particular market.
Here is the language:
Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States. Such abuse may, in particular, consist in: (a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions; (b) limiting production, markets or technical development to the prejudice of consumers; (c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
First, article 102 TFEU applies to “undertakings,” which is defined by EU case law as including every entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed. (C-41/90 Höfner and Elsner v Macrotron  ECR I-1979).
Natural persons, legal persons, and even states are included in the interpretation of undertakings. (So, as in the United States, governments in Europe might violate the competition laws).
Second, to qualify as an undertaking, the entity must be also engaged in an economic activity, i.e. offering goods and/or services within a relevant market.
Third, to fit within Article 102 TFUE’s prohibition, the conduct must have a minimum level of cross-border effect between member states within the EU.
The concept of dominance under EU antitrust rules
As explained above, article 102 TFEU prohibits abusive conduct by companies that have a dominant position in a particular market.
When you are an antitrust lawyer, an exciting day each quarter is the arrival of a fresh issue of the Antitrust Law Journal. I’ve previewed these issues in the past, here and here. Once again, the Antitrust Law Journal has arrived and it looks like a great one.
This issue includes an extensive symposium entitled “Robert Bork and Antitrust Policy.” A superstar collection of authors—including Herbert Hovenkamp, Richard Epstein, William E. Kovacic, Judge Douglas H. Ginsburg and many others—discuss Bork’s contribution to antitrust law. And my fellow summer associate from Gibson Dunn & Crutcher (from more than a few years ago), Adam J. Di Vincenzo, wrote the Editor’s Note.
Outside of the antitrust world, Robert Bork is known primarily for his Senate confirmation hearings after his Supreme Court nomination. For those of you that weren’t paying attention during the 1980s, Bork arrived at the Senate hearings as an exceptionally well-qualified nominee by President Ronald Reagan to the US Supreme Court. But for ideological reasons, they rejected him, beginning the phrase and culture of “Borking” a judicial nominee that, although qualified, may not satisfy political litmus tests. Since that time, of course, judicial nominations have, unfortunately, devolved into ideological warfare.
If you were around during the 1970s, you might also remember that Robert Bork was the acting head of the Department of Justice that fired Special Prosecutor Archibald Cox during the Saturday Night Massacre, arising out of Watergate near end of the Nixon Administration.
But—whatever you think of Robert Bork politically—he is a candidate for the antitrust-law Mount Rushmore. His most famous antitrust contribution is a book called “The Antitrust Paradox: A Policy at War with Itself.” As you can tell from the title, it was written during a time of flux and uncertainty in antitrust (1978).
You can read the outstanding articles in the Antitrust Law Journal for more detail, but in a nutshell, Bork’s major contribution with this book was to help set the goals of antitrust law toward consumer welfare. This more narrow approach contrasted with common temptations to use antitrust law as social policy to, for example, protect certain businesses from large companies. Or to use antitrust law as a means to attack “bigness” for other reasons.
Bork was highly influential in persuading antitrust participants that antitrust is really only concerned with activity that harms competition, which is the premise of the antitrust injury requirement. There is, of course, great debate over what, exactly, is consumer welfare and even whether total welfare is a better goal. And his emphasis on using economics to develop antitrust doctrine is mainstream, but there is plenty of room for debate within that framework.