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Archived: 03/05/2009 at 15:37:10
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Regulation through Agencies in the EU: A New Paradigm of European Governance
The Liberalization of State Monopolies in the European Union (EUROPEAN MONOGRAPHS Volume 23)
The WTO and Global Convergence in Telecommunications and Audio-Visual Services
See here for the programme.
My ruminations over an interesting ECJ ruling of 11 December 2008, which might open new perspectives in the area of exploitative abuses:
In Kanal 5 Ltd, TV 4 AB v (STIM) upa, C-52/07, the ECJ had to determine whether (i) the royalties charged by the swedish collecting society to broadcast companies were excessively high, hence abusive under Article 82 (a) EC ; and (ii) whether the different fee formula applicable on the one hand, to a public broadcast company and, on the other hand, to two commercial broadcast companies, was discriminatory, hence abusive under Article 82 (c) EC.
Whilst, on the first question, the Court recalled its much chastised Hoffman La Roche case-law on excessive pricing, it nonetheless whispered that, with a view to establish that a price is unreasonable under Article 82(a) EC, the purpose of the royalty could be taken into account: here, the financing of music creation, through the protection of an adequate remuneration for composers (§§30-31). With a bit of speculation, the Court seems to draw - implicitly - a link between the price of a service on the market and the ex ante incentives of service providers to innovate. This reasoning could apply, by parity of reasoning, to many other sectors (i.e. pharmaceuticals, etc.). This is further confirmed by the fact that the Court explictly indicates that a balance must be struck between the interests of the broadcasters and the incentives of composers to produce novel musical work.
But that is not all. On the second question, the Court suggests that the mere proof of different conditions for similar transactions is insufficient to trigger the application of Article 82(c). One must prove the existence of a competitive disadvantage and, to do this, establish first that the dominant firm's customers are rivals on a same relevant market (§§45-46). As Damien and I wrote in a previous paper, most price discrimination decisions to date have failed to properly analyse the downstream market. Let's hope this judgment will induce agencies and courts to investigate properly the effects of the alleged discrimination on the downstream market.
In sum, a welcome ruling, albeit too short (because an Article 234 EC ruling).
As some of you may know, there's one College of Europe, but two campuses, Bruges and Natolin (Warsaw, Poland).
Because the GCLC is global, and because competition law is decentralized, the GCLC next conference will take place on 13 march 2009 in Natolin. The conference, which will be chaired by Massimo Merola, is entitled "Competition law – New tendencies, new tools and new enforcement methods from an EC and Polish perspective".
The programme and registration form can be downloaded below.
Download Programme GCLC Conference - 13 march 2009 - ENGLISH FINAL VERSION
My colleague and friend, Laurent de Muyter has recently launched a blog on EU Telecoms Law. Well-worth having a look. It is well-documented, often updated and, more importantly, providing critical views on EU telecommunications law. Laurent is a lawyer at Jones Day Brussels and a research fellow of the Institute for European Legal Studies in Liege.
In Belgium, not all judgments are published and those published are often released a long time after their adoption. Obviously, this makes the job of legal scholars very painful. To remedy this issue, the registrars of the Courts offer reprints of judgments upon payment of a pre-established price/page.
I am currently looking for a copy of a ruling of the Brussels court of appeal, handed down on 2 February 2009, in cases 2005/MR3 and 2005/MR/4. I called the Brussels court of appeal registrar this morning. I am told that the ruling, is 36 pages long, and that the price/page is..... 10€, so it will cost me no least than 360€ (!) to get a copy of the ruling. Of course, I am told that it will soon - i.e. read a few months - be published on the website of the website of the Belgian Competition Council...
Frankly disappointing, and akin to excessive pricing for a service that mainly involves paper reprinting costs.
Picture: http://www.ebru.be/
The slides of Blanca Rodriguez and Jacques Derenne can be downloaded below.
Download Lunchtalk-BL-RODRIGUEZ
Download BRULIB01-#143925-v1-GCL_Jacques_Derenne_presentation_State_aid_and_the_financial_crisis
I attach the slides of a most interesting conference that took place on 12 February in Brussels. Thanks to Jean-François BELLIS and Miguel TRONCOSO FERRER for giving me the opportunity to talk at this event. A book comprising the proceedings of the conference will be published shortly by Larcier.
On exactly the same day as the next GCLC lunch talk on the financial crisis, the revue Concurrences organizes a lunch seminar in Brussels. Here's the question: are the two lunch talks on the same relevant market and, if so, do they compete face to face? My take: No.
Anyway, the topic of the Concurrences lunch sounds promising: Lobbying and EC competition law. I have, myself, invited A. Stanescu (Qualcomm Governmental Affairs) to talk on this issue on 3 March 2009 in Liege.
Below is the programme of the concurrences lunch talk.
It is still time to register for the next GCLC lunch talk, due this Friday, time and location as usual. Speakers are Blanca Rodriguez Galindo (DG COMP) and Jacques Derenne (Lovells). Please find below the registration form.
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