This is an\nEnglish translation. You may find the German version by clicking the flag!<\/p>\n\n\n\n
The Rehabilitation of the\nBrett Kavanaugh<\/h2>\n\n\n\n
Brett\nKavanaugh is on parole with us. You may remember: He is that US Supreme Court\njudge who was accused before his appointment of, well, having been rude to a\nwoman many years ago. While this was not clarified, his behaviour during his questioning\nin the Senate was such a mixture of annoying larmoyance, childish dogmatism and\nfoul aggressiveness that civilized continental Europeans were inclined to think:\nGosh!<\/em> Nevertheless, he became a\nSupreme Court judge, in the name of TheDonald, and now he gave an\nopinion in an antitrust case<\/a>.<\/p>\n\n\n\n And this opinion\nis a really good read! Ruth Bader Ginsburg and Stephen Breyer sided with him\n(the dissenting opinion \u2013 it was a 5:4 decision \u2013 was given by the other trump\nnominee Neil Gorsuch). The background of Apple\nv Pepper<\/em> is Apple’s behaviour to demand 30 % (!) of the revenues from app\nproviders if they sell apps via the iPhone App Store. There is a class action demanding\ndamages for the violation of antitrust law: In a competitive market, so they\nclaim, Apple would not have succeeded in enforcing such a \u201ctax\u201d. This is\nexcessive pricing, so they say.<\/p>\n\n\n\n The\nquestion that the Supreme Court had to decide on was: Do end consumers have\nstanding at all for such a lawsuit or, as the precedent Illinois Brick<\/em> from 1977 may suggest, is it up to the app developers\nto sue Apple? Kavanaugh & Co.: <\/p>\n\n\n\n “A claim that a monopolistic retailer (here, Apple) has used its monopoly to overcharge consumers is a classic antitrust claim.” <\/p><\/blockquote>\n\n\n\n Well, we<\/em> never doubted that. Kavanaugh\ncontinues by refering to monopolisation<\/em>\nas set out in section 2 of the Sherman Act as if this was the most natural\nthing to do. I rubbed my eyes briefly while reading the decision, since I had\nbeen under the impression that people in the US saw claims for exploitative\nabuses as an aberration of those Europeans who still have remnants of socialist\nplanning in their minds. Perhaps I should listen more to Supreme Court judges instead\nof chicagoized professors.<\/p>\n\n\n\n Without\nmuch ado, the basis is laid for holding Apple liable as a monopolistic\nretailer:<\/p>\n\n\n\n “By contract and through technological limitations, the App Store is the only place where iPhone owners may lawfully buy apps.”<\/p><\/blockquote>\n\n\n\n A little\nlater in the decision, it says relatively bluntly: Apple is a monopolist\nvis-\u00e0-vis consumers and a monopsonist vis-\u00e0-vis app developers.<\/p>\n\n\n\n So can\nconsumers sue? – Of course! It reads as if he had to explain to small children\nfor the hundredth time why they have to eat an apple a day (it keeps the doctor\naway!). But there is also a reason for this explanation, namely a good bench on\nApple’s side: <\/p>\n\n\n\n “All of that seems simple enough. But Apple argues strenuously against that seemingly simple conclusion (…)”.<\/p><\/blockquote>\n\n\n\n Strenuous<\/em>, I’ve looked it up in the\nMerriam-Webster<\/a>, means energetic, dynamic, vigorous, vehement. I take that\nas a compliment for the guys from Latham Watkins, who represent Apple in this\nmatter. In the end, it didn’t help, though:<\/p>\n\n\n\n “We decline to green-light monopolistic retailers to exploit their market position in that way. We refuse to rubber-stamp such a blatant evasion of statutory text and judicial precedent.”<\/p><\/blockquote>\n\n\n\n It is so ordered.<\/em> The case goes back to the lower courts, it was\nall about standing. As is not unusual, the dissenting opinion is also a good read,\nand that’s perhaps no wonder. The App Store is a platform with which we are\nstill struggling conceptually. With Kavanaugh we struggle a tiny little bit\nless than before.<\/p>\n\n\n\n The air in\nSilicon Valley is getting thinner anyway from an antitrust point of view.\nGoogle apparently now offers\na selection menu<\/a> to meet the demands of the EU Commission. The authorities\nin the USA, not only the courts, are becoming more critical. FTC and DoJ are said\nto conduct antitrust investigations. However, as we do not know exactly know what\nto make of our transatlantic friends at present, we prefer to turn to a\nstronghold of stability and reliability: the United Kingdom. <\/p>\n\n\n\n The British\nPrime Minister announced in a speech\nat the opening of London Tech Week<\/a> that she would implement the most\nexciting proposal from the Furman Report. The Furman Report, which Adrian\nDeuschle has reported on here<\/a>, is the British report on how to reform competition\nlaw rules with a view to digitization. The authors had proposed a Digital Markets Unit<\/em> \u2013 an institutional\nsolution to circumvent the numerous material uncertainties. It will be there,\nsays, hm, well, Theresa May. <\/p>\n\n\n\n The German head of government also commented on antitrust law. She spoke to the Federation of the German Industry, the BDI. This was one of the duties that Chancellor Merkel was probably less keen on: It is said that economic policy is not her favourite subject anyway, BDI President Dieter Kempf approached her head-on, and then Merkel had to pronounce the name of the Estonian President, too. She immediately added that she hoped that the pronounciation was roughly okay-ish.<\/p>\n\n\n\n (There may be some subtext to this insertion (here at minute 7:30<\/a>): Who is that lady again? After all, Mrs Kaljulaid recently had given an interview in German weekly \u201cDer Spiegel\u201d, and it made very plain how far Estonia had come in terms of innovation and digitization…)<\/p>\n\n\n\n But now\nMerkel on antitrust law (in my translation):<\/p>\n\n\n\n \u201cI come back to the European champions and the question – and here we agree again – of how our competition law in Europe is regulated. If the market definition remains as it is, and if every potential competitor is asked whether he thinks it’s good if two others merge, and the judgement of this competitor is the deciding factor, and then it is said that there has not yet been any non-European interest in a certain sector and that would not happen in the next five years either, then one is sometimes surprised how judgements are made.\u201d<\/p><\/blockquote>\n\n\n\n This is about the prohibition of Siemens\/Alstom<\/em>, of course, and it’s about China. Fun fact: In 2006, Merkel’s economic advisor Lars-Hendrik R\u00f6ller (a former Chief Economist) found in a paper<\/a> co-written with Tomaso Duso and Damien Neven: <\/p>\n\n\n\n “In particular, there is no support in our data for the claim that “the Commission listens too much to competitors, at the expense of consumer interests”.”<\/p><\/blockquote>\n\n\n\n Avid readers of this blog know that we have a soft spot for Johannes Laitenberger, the Commission’s Director-General for Competition. We therefore read the next news with one crying and one laughing eye: Laitenberger is going to leave his post in order to become a judge at the European Court<\/a>. (The term of the German judge Alfred Dittrich comes to an end. Together with Laitenberger, another German judge, Gabriele Steinfatt, will join the Luxemburg ranks.)<\/p>\n\n\n\n Laitenberger’s departure from the world of competition as of September this year is regrettable (hence our tears). Our impression from the outside: As the \u201cGeneral\u201d he manages the Directorate efficiently, is a very committed, if sober supporter of free competition, and keeps a sense of proportion in enforcing the rules. At first glance, Laitenberger, who is said to be one of the three most powerful Germans in Brussels, seems like that typical German lawyer (whatever that means), but you may also discover his funny side and his kindness. It’s a pity he’s leaving, but \u2013 and this is consoling \u2013 the Court needs good people, too.<\/p>\n\n\n\n Now for a competition: In Germany, it has become a new standard to have shiny-gliny names for new laws. For instance, if you introduce a law with changes to child care you call it \u201cGute-Kita-Gesetz\u201d (\u201cGood Childcare Act\u201d). If you decide to strip refugees of some rights so as to be able to send them back to their home countries more easily, you call it \u201cGeordnete-R\u00fcckkehr-Gesetz\u201d (\u201cStructured Return Act\u201d). It is hard to give you the full flavour of this in English. This is marketing or framing, and it is misleading, manipulative, language-wise it is close to terror. It is childish, it makes you laugh, it makes you cry, and as a trained lawyer you just think: What the hell?!<\/p>\n\n\n\n But. We are\nmade of sterner stuff, pragmatics, you know? So we take things as they are, and\nin our world today, you need good names for your rules. The next law that is\ncoming our way is the 10th<\/sup> amendment of the German competition act,\nthe \u201cGesetz gegen Wettbewerbsbeschr\u00e4nkungen\u201d (GWB). Usually, we call this the \u201c10th<\/sup>\namendment of the GWB\u201d. But you don\u2019t win a prize with such a title in the news.\nSo we need a better name with some appeal. Something like \u201cThe Fair Competition\nAct\u201d. Yet, \u201cFair Competition Act\u201d has already been given away to another law\nthat deals with consumer protection issues. In expectation of the draft bill,\nwe are looking for a name for this new law. And here we are counting on you, our\ndear readers: <\/p>\n\n\n\n Please write a name\nsuggestion for a better name for the 10th amendment of the GWB as a comment\nunder this post or send us an email to team(at)d-kart.de! <\/em><\/strong><\/p>\n\n\n\n Yes, there\nis something to WIN: For the best suggestion we will hand out a D’Kart-T-shirt.\nAnyone may join this competition. The decision is made by the D’Kart-jury.\nLegal recourse is excluded. Let’s go!<\/p>\n\n\n\n As you\nknow, there is a suspicion that employees of German car manufacturers,\nincluding BMW and Daimler, sat together in so many committees for years that\nthey no longer had time to be innovative on their own. We perfectly understand\nthis: My research is primarily paralyzed by BMW reminded\nus how competitive the car manufacturers are when Daimler CEO Dieter Zetsche (the\nguy who made sneakers and a walrus moustache fashionable in German management) departed\nfrom office. All the anger about leniency applications and such trifles have\nvanished. Competition is the driver of the German automotive industry! Take a look for yourself!<\/a>\nI found it funny. <\/p>\n\n\n\n Have a nice weekend – and have some good ideas\nfor our competition (in German, please)!<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" During Whitsun week, Germany is always a bit in a holiday mode – especially when the weather is as it is. Rupprecht Podszun, however, keeps an eagly eye in any weather, so that nothing gets lost from the antitrust world. In his SSNIPpets today you have a chance to win big\u2013 so give it a read! Here are the SSNIPpets – small but significant news, information and pleasantries – our pet project! This is an English translation. You may find…<\/p>\nApple v Pepper or: The\ndiscovery of exploitative abuse<\/h3>\n\n\n\n
Some praise for the\nlawyers<\/h3>\n\n\n\n
Watch out, Silicon Valley!<\/h2>\n\n\n\n
Merkel and the question\nhow to look at mergers<\/h2>\n\n\n\n
![\"Die](\"https:\/\/www.d-kart.de\/wp-content\/uploads\/2018\/05\/20-Jahre-BNetzA-4-e1527697827767-1024x604.jpg\")
Laitenberger’s job change<\/h2>\n\n\n\n
![\"Panel](\"https:\/\/www.d-kart.de\/wp-content\/uploads\/2017\/10\/0150-1024x576.jpg\")
Join in \u2013 and win!<\/h2>\n\n\n\n
Car-tel<\/h2>\n\n\n\n
blogging<\/s> obliging me to\nserve in more or less pointless committee meetings. But that’s another topic.<\/p>\n\n\n\n