{"id":2701,"date":"2019-09-16T18:14:22","date_gmt":"2019-09-16T16:14:22","guid":{"rendered":"https:\/\/www.d-kart.de\/?p=2701"},"modified":"2019-09-17T16:43:19","modified_gmt":"2019-09-17T14:43:19","slug":"conference-debriefing-12-eu-competition-conference-2019-bruessel-september-2019","status":"publish","type":"post","link":"https:\/\/www.d-kart.de\/en\/blog\/2019\/09\/16\/conference-debriefing-12-eu-competition-conference-2019-bruessel-september-2019\/","title":{"rendered":"Conference Debriefing (12): EU Competition Conference 2019, Brussels, September 2019"},"content":{"rendered":"\n

Every <\/em>two years<\/em><\/a> our antitrust team jumps into the Thalys\nand heads to Brussels to discuss current developments in competition law. This\nyear the timing of the Conference couldn\u2019t have been better. The event took\nplace just one day after Ursula von der Leyen announced the reappointment of Margrethe\nVestager at DG Comp. Maren Dittrich and Adrian Deuschle have a conference\ndebriefing for the readers of D\u2019Kart.<\/em><\/p>\n\n\n\n

Name of Conference<\/strong>: EU Competition Conference 2019<\/p>\n\n\n\n

Location<\/strong>: Square Business Center, Brussels,\nBelgium<\/p>\n\n\n\n

Host<\/strong>: The CMS Competition & EU Group\nand our Institute for Competition Law (IKartR) at\nHeinrich Heine University D\u00fcsseldorf<\/a><\/p>\n\n\n\n

Audience<\/strong>: A crowd of 200, many inhouse\nlawyers, some enforcers, people from trade associations \u2013 and of course law\nfirm representatives (not only from CMS) and, well, a bunch of Ph.D. Students\nfrom D\u00fcsseldorf University.<\/p>\n\n\n\n


So another Conference about digital ecosystems and how antitrust has to deal with GAFA?<\/strong><\/h3>\n\n\n\n
\"\"
Kick off with Michael Bauer (CMS Brussels), Rupprecht Podszun (Heinrich Heine University D\u00fcsseldorf)<\/em> <\/figcaption><\/figure>\n\n\n\n

No, not at all. \u201cThere will be no digital talk today\u201d as Michael Bauer, Head of Competition & EU Group at CMS Brussels, said in his welcome note. Well, not everybody was fully compliant with that restriction.<\/p>\n\n\n\n


What? No digital talk? What did they even talk about?<\/strong><\/h3>\n\n\n\n
\"\"
Panel on Vertical Restraints: Markus Sch\u00f6ner (CMS Hamburg); Marieke Scholz (DG Comp); Markus K\u00fcrten (Adidas); Luca Schicho (Austrian Competition Authority); Nicolas Lievens (L\u2019Oreal) and Ma\u0142gorzata Urba\u0144ska (CMS Warsaw)<\/em> <\/figcaption><\/figure>\n\n\n\n

Luxury goods for example. At present, DG Comp\nis evaluating the Vertical Block Exemption Regulation<\/a> (VBER). This safe harbour is important to guarantee\ncertainty and reduce compliance costs. Marieke Scholz from DG Comp said that\nthey are quite in the middle of evaluation and the support from companies,\nconsumers and national competition authorities has been overwhelming. It seems\nthat the current regime is working well, but it has to adapt to new\ndevelopments like the increase of online sales (sorry, this was digital talk\nagain!). One of the major problems seems to be the inconsistent use of the rules\non national level. Nicolas Lievens from L\u2019Oreal stressed this with a view to\npreserving selective distribution. The famous Coty Decision<\/a> with its focus on luxury good suppliers who\ncan prohibit its authorised distributors from selling their goods on a\nthird-party internet platform is still troubling. Dr. Markus K\u00fcrten from Adidas\nstated that it\u2019s still not clear what falls under the definition of a luxury\ngood. Benjamin Neyt, a lawyer from LVMH, suggested from the audience that it is\nup to the brands to define themselves as luxury brands. <\/p>\n\n\n\n

Another big point was resale price maintenance\n(RPM). Dr. Luca Schicho from the Austrian competition authority spoke in favour\nof more clarity in the VBER. Black\/White solutions do not fit. Concerning\nleniency, Schicho revealed that you can apply for leniency in Austria in RPM\ncases and you may even possibly get a 100 % reduction of the fine. So far,\nthere have been way more horizontal than vertical leniency applications. Schicho\u2019s\nproposal: \u201cIf it happens make sure it happens in the right jurisdiction\u201d.<\/p>\n\n\n\n


Who was the VIP in the room?<\/strong><\/h3>\n\n\n\n
\"\"
Keynote: Andreas Schwab (MEP)<\/em> <\/figcaption><\/figure>\n\n\n\n

Probably Dr. Andreas Schwab, who acts as Vestager\u2019s\npartner and counterpart in the European Parliament and who was the Parliament\u2019s\nrapporteur on the damages directive and ECN+. He was talking about the German-Franco-Polish<\/a> paper about modernising European\ncompetition law. For him it was actually a surprise that Poland joined that\npaper. He talked a lot about majorities, being a politician after all.\nIndustrial policy considerations are not only a legal but also a political\nquestion, and Schwab seemed pretty clear that from a political perspective some\nof the proposals will fail to gain a majority. He proposed to see the paper as\nan impulse for further discussions on the European level.<\/p>\n\n\n\n


What did the company representatives actually think of so-called European champions?<\/strong><\/h3>\n\n\n\n
\"\"
Panel on Merger Control: Rupprecht Podszun (Heinrich Heine University D\u00fcsseldorf), Ruben Maximiano (OECD), Ang\u00e9lique de Brousse (Johnson&Johnson), \u00c9tienne Chantrel (French Competition Authority), Benedikt Ecker (ThyssenKrupp), Harald Kahlenberg (CMS Stuttgart)<\/em> <\/figcaption><\/figure>\n\n\n\n

All panellists, including ThyssenKrupp\u2019s Benedikt Ecker, were sceptical about political considerations in merger control. There is no evidence that bigger companies are better. \u201cEven shareholders can\u2019t predict the market, so how can government?\u201d stated Ruben Maximiano (OECD). We couldn\u2019t agree more! One of the cases discussed was the prohibition of Thyssen\/Tata<\/a>. Ecker said a different market definition would have been important for the case, but not the industrial policy aspects. He also mentioned business cycles. Angelique de Brousse (Johnson&Johnson) is sure that European competition law is already flexible enough to tackle the issues raised by Chinese players, who are coming to Europe. Some of the things discussed as \u201cindustrial policies\u201d could be considered in the efficiency defence, but this is a weak tool, too. She also pointed at the fact that environmental or employment concerns could come into play, once the field is opened up.<\/p>\n\n\n\n


Anything else on mergers? <\/strong><\/h3>\n\n\n\n

Gun-jumping and misleading information in\nproceedings with the agencies are topics troubling inhouse lawyers. After all,\nthe authorities stepped up their efforts and handed down enormous fines, as in\nAltice for example. De Brousse laughingly explained that it makes her job\neasier towards top-management if she can point at the hefty risk\u2026 Asked whether\nrules are maybe too vague vis-\u00e0-vis huge fines, \u00c9tienne Chantrel, head of the\nmerger department at the French Autorit\u00e9 de la Concurrence, revealed that the\nFrench authority will give guidance this week. With only 2 or 3 gun-jumping\ncases out of 200 – 250 he said that obviously companies usually know very well\nhow to behave. Harald Kahlenberg suggested to turn to the authorities to\nminimise the risks.<\/p>\n\n\n\n


Did anything go wrong? Any surprise \u2013 maybe positive ones? <\/strong><\/h3>\n\n\n\n
\"\"
Panel on Abusive Practices: Carlos V\u00e9rgez (CMS Madrid), Philippe Chauve (Food Task Force, DG Comp), Jos\u00e9 Lu\u00eds da Cruz Vila\u00e7a (former ECJ Judge), Ben Graham (AB InBev), Michelle Gibbons (AIM \u2013 European Brands Association), Michael Bauer (CMS Brussels)<\/em> <\/figcaption><\/figure>\n\n\n\n

We did not notice any mishaps. But the panel on\nabusive practices had two memorable moments out of the orderly: Firstly, very\nlast minute Karen Schutyser from Coca-Cola was unable to attend, but with\nBrussels professionalism Michelle Gibbons from AIM simply jumped in. And the\nman sitting next to her, AB InBev\u2019s Ben Graham, had his birthday<\/a> on the panel. No singing, but at least he got\na nice birthday cake!<\/p>\n\n\n\n

\"\"
Antje Groh (CMS Brussels) presents Ben Graham with a birthday cake.<\/em> <\/figcaption><\/figure>\n\n\n\n


So, a panel on abuse with former judge Cruz Vila\u00e7a surely talked about <\/strong>Intel<\/strong><\/em>, he was the rapporteur, wasn\u2019t he?<\/strong><\/h3>\n\n\n\n

Lentamente!<\/em> The discussion started off with quite critical remarks on the power of buyer groups and retail alliances. The Commission is currently reviewing this topic. Apparently, it is highly aware of the potential power of delisting by retailers, which Gibbons and Graham encouraged. Philippe Chauve (DG Comp) went on to pose the question if a strong retail alliance harms the consumer in the long run. According to him, if a product is not available in a shop anymore, but in another one around the corner, it is difficult to see consumer harm. <\/p>\n\n\n\n

This got Jan Werner (Metro Group) on his feet in the audience, exploding<\/s> arguing that delisting may be a necessary practice to counter the price increases of suppliers, so he played down <\/s>put into perspective the power of delisting. In fact, he said, it would be impossible for a retailer to delist e. g. Coca Cola. Werner perceives the actual balance of power quite differently from the colleagues on the panel, and he pointed to the fact that in food & beverages there are only a few suppliers, each holding high market shares. Jan Werner\u2019s \u201cquestion\u201d was probably the emotional highlight of the day! (Sorry, Ben, your birthday was also very emotional.)<\/p>\n\n\n\n


So, what about <\/strong>Intel<\/strong><\/em>?<\/strong><\/h3>\n\n\n\n

The second part of that debate concentrated on the Intel case<\/a>. Prof. Jos\u00e9 Lu\u00eds Cruz Vila\u00e7a who had indeed dealt with Intel at the Court of Justice hinted that judgments sometimes develop their own life (as Bj\u00f6rn Herbers<\/a> from CMS put it later). In fact, in the former judge’s opinion Art. 102 TFEU is not so much focussed on competitors and their behaviour (as in the as-efficient-competitor test, which was said to be only an econometric test), but more about the efficiency of competition as a whole. Probably, some would have wished for more precise reading guidance from the author\u2026<\/p>\n\n\n\n


The final panel was on damage claims? Any new insights?<\/strong><\/h3>\n\n\n\n
\"\"
<\/em>Panel on Damage Claims: Tim Reher (CMS Hamburg), Christian Kersting (Heinrich Heine University D\u00fcsseldorf),Tilman Makatsch (Deutsche Bahn), Vitaly Pruzhansky (RBB Economics Brussels), Mathias Traub (Robert Bosch GmbH), Caroline Hobson (CMS London)<\/em> <\/figcaption><\/figure>\n\n\n\n

That was an entertaining final! While reviewing\nthe situation after the Damages Directive<\/a>, Dr. Tilman Makatsch (Deutsche\nBahn) compared the situation with the gold rush in America \u2013 most gold diggers\ndid not get rich, but those selling the equipment did… He had the audience\ngiggling. There are still huge differences in the member states, which leave\nmuch to wish for for claimants. For instance, Makatsch said UK courts could be\nreally expensive, but give high-quality judgments. The US courts drive you into\nsettlements. He praised the German courts for their urge to find the right\nsolution for a case \u2013 if for the price of incredibly lengthy proceedings. He\nreferred to the elevators and escalators case<\/a> in which Deutsche Bahn (amongst\nothers) sued for damages in the Berlin District Court \u2013 and which is still\npending after 9 years without even an oral hearing. In addition to that, the\npanel seemed to be doubting the utility of disclosure orders. At least in Germany\ncourts do not seem to be used to such form of disclosure and there is no case\nlaw (until now).<\/p>\n\n\n\n


A cartel damage panel surely talked about the <\/strong>Skanska<\/strong><\/em> case, too.<\/strong><\/h3>\n\n\n\n

Yes, of course, in particular with our professor Christian Kersting on the panel! He gave a short summary of the\u00a0ECJ\u2019s judgement<\/a>\u00a0and its importance (see his latest\u00a0English blog post here<\/a>). The landmark decision confirms group liability in damage cases, including liability of parent and sister companies and \u2013 according to him<\/a> \u2013 sister companies as well. Interestingly, the ECJ arrived at this conclusion directly from Art. 101 TFEU. Thus, the fundamental question rises which law is applicable to the cartel damage claim. While Advocate General Kokott<\/a> and apparently Advocate General Wahl<\/a> as well hold the view that questions of substantial law are to be solved under EU primary law and the national law is applicable to procedural questions, Christian Kersting<\/a> argues for a clearly bigger role for the national law, which of course is shaped by the Damages Directive and the principles of effectiveness and equivalence. The panel agreed that the judgement will keep everybody busy for a while.<\/p>\n\n\n\n


Sounds like a lot of stuff to chew on. Did you get anything to eat, too? <\/strong><\/h3>\n\n\n\n

An exquisite 4 course menu at the KWINT restaurant. Unfortunately, we did not take photos. We were too hungry. Some dinner talk revolved around the fact that, apparently, Rupprecht Podszun has arrived in the 21st<\/sup> century now, too, aka on twitter<\/a>. Welcome!<\/p>\n\n\n\n


Oh dear. This topic hardly serves for four courses, though.<\/strong><\/h3>\n\n\n\n
\"\"
Dinner speech: Henne Schuwer (Former Ambassador of the Kingdom of the Netherlands to the United States)<\/em> <\/figcaption><\/figure>\n\n\n\n

Donald Trump does. Henne Schuwer, who just\nretired as the Ambassador of the Kingdom of the Netherlands to the United States\nof America, gave us insider stories from his life as ambassador at D.C. with\nPresidents Obama and Trump.  <\/p>\n\n\n\n


Hope Trump did not ruin your appetite for <\/strong>macarons<\/strong><\/em>. What is on the menu for antitrust law in the near future?<\/strong><\/h3>\n\n\n\n

Next in the September schedule will be our 3rd Doctoral Seminar<\/a> in D\u00fcsseldorf! At least the two of\nus and the rest of the bunch of Ph.D. students will meet again there, together\nwith Andreas Schwab, Wouter Wils, Raphael L\u2019Hoest, Julia Holtz and the\nD\u00fcsseldorf Antitrust Bar. The day after, our Institute will host Forum Unternehmensrecht<\/a>, this time with the Draft of the 10th<\/sup> Amendment to the German Act\nagainst Restraints of Competition<\/a>. Two absolute highlights in the antitrust calendar<\/a> that definitely shouldn\u2019t be missed.\nD\u2019Kart will keep you up to date!<\/p>\n\n\n\n

Do say<\/strong>: \u201cIf you don\u2019t talk digital, you\u2019re\ndead.\u201d (Nicolas Lievens)<\/p>\n\n\n\n

Don\u2019t say <\/strong>(if you want to follow Henne Schuwer\nin the Dutch diplomatic service): \u201cThe Netherlands are the McDonalds of the\ndamage claims jurisdictions. It\u2019s quick, it\u2019s cheap and you\u2019re still hungry\nafterwards.\u201d (Tilman Makatsch)<\/p>\n\n\n\n

\"\"
Ph.D. Students on the road. Front row (fltr): Svea Stratmann, Maren Dittrich, Sarah Langenstein, Anna-Jacqueline Limprecht, J\u00f6rn Kramer, Manuel Bogenreuther, Rupprecht Podszun (no longer a PhD-student), Daphne Brunkhorst (CMS), Niklas Andree. Back row (fltr): Oliver Jans, Christian Kersting (also has his PhD already), Adrian Deuschle, Fabian Brauckmann, Jonas Weller, Maximilian Scheurle, Dennis Cukurov, Marie-Christine Schulte, Hans-Markus Wagener, Manuel May.<\/em> <\/figcaption><\/figure>\n\n\n\n


Adrian Deuschle and Maren Dittrich are Ph.D. students in competition law at Heinrich Heine University, D\u00fcsseldorf. They work as research associates with Prof. Podszun and Prof. Kersting respectively.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Every two years our antitrust team jumps into the Thalys and heads to Brussels to discuss current developments in competition law. This year the timing of the Conference couldn\u2019t have been better. The event took place just one day after Ursula von der Leyen announced the reappointment of Margrethe Vestager at DG Comp. Maren Dittrich and Adrian Deuschle have a conference debriefing for the readers of D\u2019Kart. Name of Conference: EU Competition Conference 2019 Location: Square Business Center, Brussels, Belgium…<\/p>\n

Read More Read More<\/span><\/a><\/p>\n","protected":false},"author":11,"featured_media":2711,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[253],"tags":[293,295,48,294],"class_list":["post-2701","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-conference-debriefings","tag-eu-kartellrecht","tag-industriepolitik","tag-intel","tag-vber"],"translation":{"provider":"WPGlobus","version":"3.0.0","language":"en","enabled_languages":["de","en"],"languages":{"de":{"title":true,"content":true,"excerpt":false},"en":{"title":true,"content":true,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/2701","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/users\/11"}],"replies":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/comments?post=2701"}],"version-history":[{"count":24,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/2701\/revisions"}],"predecessor-version":[{"id":2741,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/posts\/2701\/revisions\/2741"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/media\/2711"}],"wp:attachment":[{"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/media?parent=2701"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/categories?post=2701"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.d-kart.de\/en\/wp-json\/wp\/v2\/tags?post=2701"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}