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ASCOLA Annex Session 3 Institutions and Remedies + Nicolas Petit book panel - Shared screen with speaker view
Michal Gal
36:46
I have one
isabelfernandeztorres
48:41
I would like to add something
Zeynep Ayata
50:45
I would also like to ask a question
Jasminka Pecotic Kaufman
50:49
I have a question
theodosia stavroulaki
50:50
I have a question
Marcos Araujo Boyd
51:02
Would the ongoing debate on expanding the role of competition law (fairness, environment...) exacerbate these tensions?
Magali Eben
51:32
Loads of questions! I'll call on Zeynep next, we may not have time for everyone, so please pop your question in here for Maciej to answer through chat or later on!
theodosia stavroulaki
53:14
Maciej: You said that in the agencies you examined you observed a trend: that they promote additional goals other than competition. What are these goals? Under what conditions you think it is problematic ?
Zeynep Ayata
55:49
Thank you very much! Very interesting presentation overall.
theodosia stavroulaki
56:26
Maciej: interesting agenda!
Jasminka Pecotic Kaufman
57:32
@Maciej: Thank you for very interesting presentation! Did you find any interrelation btw former planned economy legacy and populist tendencies in your research?
Michal Gal
57:54
indeed, very interesting, thank you Maciej. I was wondering what you think is the way forward- how these institutional effects can be dealt with, if at all.
Maciej Bernatt
59:30
Hi Theodosia, I said that the mandate of competition authorities is expanded to include competences which are different from classic competition, in PL we have a new competence of combatting payment gridlocks in the economy
Maciej Bernatt
01:00:39
and the result may be that competition mandate is "marginalized" within the agency
theodosia stavroulaki
01:00:55
I understand, interesting!
Jasminka Pecotic Kaufman
01:02:39
@Maciej The institutional effects you described can be found in many younger competition regimes, can the causes of this in your sample of countries be explained, at least in part, to factors other than populism?
Miguel Moura e Silva
01:02:50
@Isabel: the Portuguese Competition Authority adopted a disbarment sanction with regard to 2 firms in a cartel case a couple of months ago: http://www.concorrencia.pt/vEN/News_Events/Comunicados/Pages/PressRelease_202002.aspx?lst=1&Cat=2020
Maciej Bernatt
01:03:29
Michal: that's difficult but I think that the experience of the coutries I looked should be used to think who to build competition law systems (in other countres) to limit risks; I also believe there is a plcae for active role of supranationali institutions like the Commission; in any case a mere change of legal acts will not suffice
Michal Gal
01:05:21
many thanks! I completely agree that external pressure might sometimes be important- maybe also the OECD or the World Bank
Malgorzata Kozak
01:06:23
@Maciej I am sorry I missed your presentation. But do you think in the EU framework - in order to limit those risks - there should be harmonisation of procedural rules in case of application of art. 101 and 102 TFEU?
Marcos Araujo Boyd
01:06:34
@Isabel - any clue why the definition of economic operators does not match that of 'undertaking'?
Maciej Bernatt
01:06:55
Hi Jasminka, I'm not saying that the same representations are not present elsewhere and you may have different reasons for this but I think i collected evidence showing that populism may involve the process of backsliding, so in some cases we may back to the weaknesses that existed in the past (for example at the beginning of formation of competition law system), you see my point?
Michal Gal
01:07:38
I have a question, if there's time
Miguel Moura e Silva
01:07:45
Self-cleaning may open the door to considering compliance programmes in the context of sanctioning by competition authorities
Jasminka Pecotic Kaufman
01:07:59
Sure, looking forward to reading your paper!
Maciej Bernatt
01:11:29
@Małgorzata Kozak: I'm in favor of procedural convergence; it may be useful in some respects but again the problem does not always lie in the text of the law
Malgorzata Kozak
01:16:18
@Maciej Will read the paper of course. Thanks
Maciej Bernatt
01:17:15
@Małgorzata: this will be a book and it is quite advanced :-)
Malgorzata Kozak
01:18:57
@Maciej then looking forward even more :-)
Michal Gal
01:23:41
Vincente and Carlos- a clarification question: are you assuming that the standard is based on IP? That might not always be the case
Andriani Kalintiri
01:23:45
I would like to ask one
Miguel Moura e Silva
01:28:50
A philosophical question: given that creating subsidiaries is an organizational choice to limit liability is there such a thing as an “innocent” subsidiary?
Michal Gal
01:29:53
Great question!
Ignacio Garcia-Perrote
01:30:26
good point, Miguel!
Maciej Bernatt
01:31:32
@Marcos, I saw your question only now about broader goals such as fairness, I think these are the things we need to discuss today as antitrust society what is important in this context is proper institutional organisation of agency and broader checks and balances in the system (such as effective judicial review); I also believe that competition law enforcement should not ignore economic reasons lying behind the rise of populism. This may also be of interest to @Theodosia
Magali Eben
01:33:58
That's assuming subsidiaries are created, rather than join the group later on?
Miguel Moura e Silva
01:34:26
Where there is a minority partner I can understand an argument for limiting liability (arguably only in a proportional part to the infringers shareholding) with regard to the innocent partner.
Magali Eben
01:34:50
So that brings it back to control rather than economic unit?
Marcos Araujo Boyd
01:36:02
@Catarina - is there not a twist if the principle of personality no longer refers to persons but to undertakings?
Miguel Moura e Silva
01:36:40
@Marcus: Soylent Green is people
Eva Fischer
01:39:30
@ Marcos: is the principle of personality even the right approach since this is defined by national corporate law?
Andriani Kalintiri
01:39:57
I just want to note that the approach in competition law is quite unique and has been relied on as an example in other contexts too (e.g. human rights violations by corporate groups etc.)
Marcos Araujo Boyd
01:39:57
@Eva - no, it is defined by EU law after Skanska...
Eva Fischer
01:40:33
Yes, the undertaking is - arguably in overcoming this national approach ?
Miguel Moura e Silva
01:43:47
Even in corporate law there is such a thing as lifting the corporate veil
Marcos Araujo Boyd
01:44:05
@Catarina - you are right, there are many inconsistencies. I did not mean that there is a clear solution, just reacting on the principle of personality. Let's continue the debate!
Marcin Kamiński
01:44:40
@Maciej any tips on when your book will be published?
Ignacio Garcia-Perrote
01:44:59
Thanks Catarina for your presentation!
catarinavieiraperes
01:47:51
True, in corporate law there is the institute of veil piercing but under very strict circumstances: there must be some form of abuse for the corporate veil to be pierced
Marcos Araujo Boyd
01:50:23
@Miguel Moura - Soylent Green!! Didn't catch that at first...
Maciej Bernatt
01:55:07
@Marcin: I have contract with CUP and have to finish it in upcoming months. If you interested some (preliminary) thoughts are here: https://ssrn.com/abstract=3321719 and here: https://ssrn.com/abstract=3431631
Marcos Araujo Boyd
01:55:27
@Andriani, that is very true and relevant. Competition law is opening a path that others will tread, An extreme reading of Salomon is no longer possible, but a 'full monty' is currently impracticable (think Union Carbide).
Marcin Kamiński
01:58:29
@Maciej Thanks a lot, I will take a look at them. Can't wait to see your book.
Miguel Moura e Silva
01:58:38
@Catarina, you chose a very interesting topic. We will see how the ECJ decides the issue, but it will be one of those areas where the law will continue to developers. Congrats!
catarinavieiraperes
01:58:44
@Miguel regarding your question regarding whether there is such thing as innocent subsidiary, while it is true that they are created with the idea of limiting liability there are various other reasons that might justify the creation of a subsidiary, namely it might sense in terms of management autonomy. Innocence can only be assessed in relation to the infringement itself and not the reasons that led to is creation.
catarinavieiraperes
01:59:07
@Miguel thank you!
Eva Fischer
02:01:21
@Miguel/Caterina: And isn’t the market activity/breach the only relevant issue for competition law?
Miguel Moura e Silva
02:03:47
@Eva: good point. Regarding how to establish the baseline for a sanction, certainly. But I think Catarina’s point goes beyond that
catarinavieiraperes
02:05:55
@Eva: even though the definition of undertaking its a functional one, when the Court defines what entities are deemed too be part of the same undertaking the definition is done regardless of whether the entities are present in the same market
Magali Eben
02:08:00
Feel free to pop your thoughts/questions/comments in the chat. We might have some time at the end to discuss some. And even if we don't have the time to touch upon everything, Nicolas/Andriani/Giuseppe will all be given the chat later on.
Thibault Schrepel
02:08:03
Thank you so much for putting some new light on an heavily discussed subject. My question is the following: what would be the implications of your findings for remedies such as data portability, interoperability…?
Miguel Moura e Silva
02:09:30
Giuseppe’s definition/conceptual issues are spot-on. One of the difficulties in discussing these issues is the fact that different people probably mean different things when they talk about gatekeepers, etc. Amalgamating markets under the FAANG, GAFAM and other acronyms doesn’t help.
Magali Eben
02:10:44
Exactly @Miguel: Like the word 'platform' which for years was widely used with different meanings.
Miguel Moura e Silva
02:11:02
Platform shoes come to mina Magali
Miguel Moura e Silva
02:11:05
mind
Michal Gal
02:11:13
@NIcolas if I understood correctly, you claim that we should
Magali Eben
02:12:43
@Miguel: Reminds me of my teenage years, platform shoes...
Michal Gal
02:13:01
focus more on tipped markets. But might it not be more important to ensure that in those that have not yet tipped - the most efficient or consumer-welfare-enhancing firm wins? otherwise we ewill "pay" for years to come for sub-optimal technologies and services?
Magali Eben
02:13:58
To Michal's point: might also not be more difficult to impose remedies when markets have already tipped?
Miguel Moura e Silva
02:15:42
@Nicolas The procedural nature of competition law (in the sense of protecting the competitive process and not determining outcomes) makes intervening in tipping markets prone to accusations of favouring a class of competitors. I think this will be unavoidable: it’s the Schrodinger’s cat of competition law… intervening will probably determine the outcome
theodosia stavroulaki
02:17:37
but if we focus on tipping markets we also ensure that consumers have choices - if we focus on tipped markets only we may disregard that consumers have already been considerably hurt- so it may be too late
Magali Eben
02:18:56
@Theodosia: true - maybe we should more carefully delineate competition law from unfair competition and consumer protection rules? They could apply 'in the process of tipping', while abuse of dominance/antitrust provisions apply when the markets have tipped.
theodosia stavroulaki
02:20:16
my view is that ensuring choice is a goal of competition law as well
Shilpi
02:20:54
I didn’t understand how imposing remedies on subsidised side can be more harmful? I thought the idea was to charge money so as not to have advertising on the other side? Please correct me if I have misunderstood.
Miguel Moura e Silva
02:21:34
Magali that is a good question: unlike the US there is no attempt to dominate offense. When there is a dominant position it will probably be too late to make a difference. Yet, going back to Microsoft, intervention may affect the transition in future rounds of innovation.
Magali Eben
02:21:35
I agree it could be, and it is in some jurisdictions indeed. However, my current research makes me more and more convinced that by incorporating multiple protected categories into competition law, we are actually doing justice to none.
theodosia stavroulaki
02:22:46
what about the deterrence effect? as well
theodosia stavroulaki
02:22:57
this is also an issue to think about
Jan Blockx
02:23:18
@Magali. I'm not sure why consumer protection should only apply in tipping markets and not in markets that have tipped. Why would no protection for consumers be required in the latter?
Thibault Schrepel
02:23:31
Theodosia: choice is a dangerous goal, as we now from behavioural science that there is no correlation between choice and consumer welfare.
theodosia stavroulaki
02:23:37
Jan - I agree
Michal Gal
02:23:56
@Miguel: although there is no attempt to monopolize in EU, (and I think there should be!) the EU has a MUCH LOWER threshold for dominance, so it captures some of the cases ythat in the US would be captuted by an attempt to monopolize offense
Magali Eben
02:24:02
@Jan: Of course it should apply in tipped markets. I just meant to say that in tipping markets iwe should not apply competition law, but we could apply consumer protection or unfair competition
Jasminka Pecotic Kaufman
02:24:18
@Thibault I agree
theodosia stavroulaki
02:24:21
Ensuring choice is one of the goals of competition law - at least eu case law and us antitrust law reveal
Thibault Schrepel
02:25:07
Unfortunately, the EC has it both ways: uses behavioral sciences when convenient, and not using it when even more convenient (the “choice paradox” is real, though)
theodosia stavroulaki
02:25:36
sure- the paradox choice example is a a good one to think
Miguel Moura e Silva
02:25:54
@Michal, point taken. But 50% in a market with network externalities and economies of scale will make it hard to beat
mark
02:25:59
Does consumer welfare and choice in antitrust also ensure environmental welfare and sustainability at the same time?
Thibault Schrepel
02:26:09
Integrating it into the Android decision could have changed the outcome. Anyway, thanks!!
Thibault Schrepel
02:26:21
THANK YOU SO MUCH NICOLAS