A retrospective view of the Brussels Module: Competition / Antitrust LawPublished by Milva Naenny on Tue, 02/05/2019 - 15:42
Written by Fiona Wallace-Mason
The first module of the new year and in fact, the last European module of the Executive M.B.L. –HSG programme 2018-2019. Brussels was the perfect location and indeed, it was also the perfect timing to hold the Competition / Antitrust Law module in the de facto ‘heart’ of the European Union. With Brussels being considered as the home of EU politics, Belgian chocolate and of course, not forgetting to mention the famous Belgian beer and cuisine, we were looking forward to a highly interesting module, resonating all things Competition /Antitrust Law and all things European. Furthermore, we were excited about a highly technical and demanding module which would hopefully provide us with some ‘leniency’ (to pardon the pun), and completely unfurl to us the exciting corporate, legal and regulatory world of Competition and Antitrust Law. Where we may have had either limited or no technical knowledge of this part of law, (and judging from the extent and depth of the pre-reading materials), we were very excited and expectant that the module would bring to life those elements. Any preconceived or limited understandings that we equated with the world of Anti-Trust and Competition Law, for example, perhaps from big films such as “The Informant” in which Matt Damon plays the ultimate whistleblower in the murky corporate world of price-fixing tactics, would be firmly washed away. Instead, this module would instill into us the importance of this area of law, the depth of its impact and technical complexities as well as the critical role of the lawyers and enforcement agencies in shaping the markets, and our lives.
Meeting some of the group ready to depart from Zurich airport, everyone was excited to be heading off to Brussels. We experienced what seemed like such a strongly ‘seesaw’ descent into Brussels airport that it is worth a mention in itself how well the captain did against the very competitive meteorological elements! With the airplane wings heavily swaying from side-to-side and children (as well as some adults too, almost) crying, I think it is fair to say that most of us from the St. Gallen student group flying in from Zurich were all heartily relieved to be finally on the tarmac safe-and-sound after a blustery wintertime landing! In was certainly an exciting way to arrive into Brussels and it seemed that a mighty strong ‘wind doth blow down from the north’ … In contemplation of the week ahead, I just hoped this gale was not going to be symptomatic of this week’s EU political and Brexit agenda discussions which would form the backbone of this wonderful location.
On a very cold January Monday morning, the Executive M.B.L.-HSG students all arrived as fresh as a flurry of new snow at the impressively towering Freshfields offices, at Bastian House in Brussels. It was really nice to see the group again since the last module (Litigation/Lobbying in Luxembourg in November) and everyone appeared to be in good spirits, beaming and eager to begin the first module of the new year! For me personally, —returning to Brussels since another study programme a few years prior, it was very exciting to be back. However, this time, I was personally also in somewhat of a reflective mood on this visit, i.e. being British and thus deep in contemplation of Brexit and specifically, anxious to see what the week would bring from a political perspective. This module in Brussels would be my frame of reference to the Brexit related happenings back in the UK parliament, in a week when UK MPs would be exercising their votes “for” or “against” the Brexit deal. It was going to be a most interesting (and perhaps historic) week ahead on all fronts and what no better place that Brussels to experience this and the ‘real feel’ of modern politics at such a critical time. Furthermore, big EU competition cases were being discussed right under our noses - this was going to be a great week!
Starting off the module, Chairpersons Dr. Andreas von Bonin and Christian Mayer provided the group with a very welcoming and professional introduction as the module leaders. Dr. Von Bonin, a partner in Freshfields Bruckhaus Deringer’s global antitrust, competition and trade (ACT) group holds an extensive experience spanning merger control, joint venture cases, European State aid procedures and antitrust compliance and investigations. He has also been involved in competition litigation before the EU courts. Together with his wide specialisms which include regulatory advice in various sectors including transport and logistics, finance, telecoms and media sectors, we were extremely grateful to have such a prominent expert in his field leading us through this module.
Christian Mayer, our second Chairperson, is a name Partner at Starlinger Mayer attorneys-at-law in Vienna where he advises national and international clients on Austrian and international competition law, merger control, energy law and compliance. Specialising in dispute resolution (particularly competition and energy related arbitration) as well as having been a university lecturer (European Competition Law) with the University of St. Gallen since 2011, he also brought a wealth of technical and practical experience to the course. The group was certainly in good hands to have a very successful module.
Dr. Von Bonin provided a very engaging and exciting introduction as to what we may expect during the week and this was followed by Mayer providing us with an informative overview presentation which very clearly outlined the key areas to be covered. Later that morning after a coffee break, a highly informative lecture on Antitrust economics was led by John Davies, Senior Vice President at Compass Lexecon in Paris. Davies’ is highly experienced in leading consulting economists in the areas of competition policy, litigation and economic regulation and having held the position of the first Executive Director of the new Competition Commission of Mauritius and then Head of the Competition Division of the OECD in Paris. Davies’ extensive experience was well-positioned to be able to lead the group through the fundamentals of competition economics which included a couple of highly applicable interesting case studies. We contemplated the ‘problem’ of market power and considered market definition and collusion. This was followed by a session of mergers and the assessment of market power followed by an introduction to the economic considerations of the abuse of dominance, demand-side substitutes, elasticities, horizontal mergers and vertical mergers and finally, the abuse of dominance itself. This was an excellent and clear session and the use of a couple of highly interesting cases studies really brought the economics to life - it was certainly a good preparation and grounding for the group exercise later in the week!
The next session was led by Dr.Ulrich Soltesz, Partner at Gleiss Lutz, who advises clients on European antitrust and state aid law as well as on merger control and European law. Representing German and foreign countries before the European Commission and national competition authorities, Soltesz has litigated over 40 cases before the Courts of the EU. Furthermore, representing numerous companies in EU cartel investigations, Soltesz has been an expert speaker at various international conferences and has published many articles and contributed to a number of books on competition and state aid issues. His session provided the group with a rigorous introduction to ‘Antitrust Law and the Prohibition of Anticompetitive Agreements’. Covering some of the key competition theories (including classical theory/Adam Smith, Harvard School, Chicago School, ordoliberalism and more effects-based approach e.g. European Commission and the trend towards new interventionism), this session provided the group with a strong background context of antitrust law as well as setting out today’s evolving compliance culture against the backdrop of corruption scandals, cartel investigations, world-wide enforcement of competition rules. Furthermore, he discussed the personal liability of senior management /employees due to personal involvement or failure to supervise the organisation correctly. The remainder of the session guided the group nicely into the technicalities of the legislation, specifically, an in-depth consideration and general principles of the three pillars of EU competition law Article 101 TFEU, Article 102 TFEU and EUMR (Reg. 139/2004).
Gleaming Brussels by night from the Freshfields offices
In the evening, the Executive M.B.L.-HSG students were offered a very nice reception by Freshfields on the 24th floor, overlooking Brussels - it was now dark and the city lights below shimmered with activity. Spectacular views seem to be a recurring theme during the venues of our St. Gallen modules and certainly Freshfields did not disappoint in this respect! The fantastic view of Brussels from the Freshfields terrace, provided for a most sensational birds’-eye view and a competitive vantage point for our discussions. Hosted by Dr. Von Bonin and Christian Mayer, the students all enjoyed a really great time, networking and catching up together. In spite of a long first day which had really thrown us into the detail, the group was in a very upbeat and enthusiastic mood after the excellent speakers. Afterwards, some of the group decided to catch a local evening meal and in good spirits, the local cuisine was well-sampled.
Day 2 began with a very exciting seminar from Cyril Ritter, Policy Officer at DG Comp at the EU Commission where he works in the Antitrust Policy and Case Scrutiny unit. With experience working on mainly emerging technology issues, technology cases, financial and Pharma cases, Ritter provided us with a fascinating and in fact, a very exciting insight into the world of investigating cartels, sanctioning of cartels and abusive practices. From his personal perspective, Ritter provided an engaging account of the lifecycle of a case, the respective institutions and actors involved. We learned about the European Commission and other stakeholders as well as the act of enforcement through the authorities and/or the courts (i.e. public or private enforcements). Ritter delved into the detail of the EU ‘public enforcement system’ and led us, in detail, through the various steps in a case right from detection through to investigation and then ultimately, ending up at the decision (fines, remedies and litigation). The group seemed transfixed during this session as the practicality of case scrutiny seems to spring right out of a movie… By the end of the session, I think it is fair to say that we all had a much more realistic and practical perception of the what happens during for example, a dawn raid and importantly, those steps which need to be taken by the relevant parties involved as well as the General Counsel.
Chairmen of the module Dr. Von Bonin and Christian Mayer at Freshfields
After the coffee break, the remainder of the morning was dedicated to a session on Article 102 TFEU - abuse of dominance and after lunch, this continued with a look at some particular case studies. The session was led by Dr. Hanno Wollman, a partner at Schoenherr Attorneys-at-Law in Vienna, where he heads the firm’s EU and competition practise group. With a focus on European and Austrian competition law, Dr. Wollman advises on and represents a wide range of industries including energy, telecommunications, banking, finance, media, transport, pharmaceuticals and consumer goods. His experience in all types of public and private litigation, as well as out-of-court advice in merger control work, provided the group with a wealth of experience to draw upon in this session. We examined the Google case, the Gazprom case and some of the other cases of the Commission under Article 102 TFEU in 2018. Dr. Wollman led the group through monopolisation and discussed detecting abuse of dominance as well the various examples of abusive practises. The session continued to cover Unilateral Conduct, consequences of infringement of Article 102 TFEU (public v private enforcement), how to test abuse of dominance cases, and some of the finer details of assessment of dominance. A case study brought together the key elements explained and then the session ended up with a discussion about exploitative conduct, discrimination and exclusionary conduct.
In final session of the afternoon, Dr. Von Bonin provided a rigorous, detailed and engaging introduction of State aid control in the EU/EEA. After providing a clear oversight and explaining what EU State Aid Control is all about, we learned how the EU has the power to prohibit state authorities from granting aid that distorts competition and that State aid may be required in certain instances to address market failures. Von Bonin continued to explain in detail the uniqueness of State aid control in the international context as well as the important role that competition lawyers play in advising for example, governments and other potential aid donors on notification procedures, EC investigations, on transactions, legislative matters and litigation. Furthermore, he discussed their role in advising aid recipients and advising complainants (trade associations, competitors on making complaints, representing complainants, in Commission investigations and third-party litigation). Von Bonin then took the group through the detail of a number of types of cases as well as the technicalities of Article 107 (1) TFEU. Then, the session ended up with the group understanding in detail how to approach a State aid case - this was very interesting and structured. Again, the group really enjoyed a highly professional speaker and hugely informative and captivating afternoon session.
In the evening, the group was invited to a reception held at White & Case law firm. This was preceded by a very interesting talk led by several White & Case lawyers on Competition law and the context of several interesting cases at the present time. After some questions and discussions, the White and Case team laid on a very nice reception hosted by the lawyers, making us all feel very welcome.
Day 3 started briskly and Dr. Von Bonin introduced his session with Michael Albers, Consultant for competition policy and law enforcement in Brussels. This session was a fascinating debate on EU Merger Control, between Albers and Von Bonin. The group was lucky to see two such experienced practitioners outlining and debating the major points of the EU Merger Control system and the clearly explaining the lifecycle of an EU Merger Control proceeding. This was a fascinating session and the group clearly enjoyed listening and had the opportunity to ask lots of questions.
The rest of the day consisted of in-depth sessions on selected topics in respect of EU Antitrust. Dr. Romina Polley provided an excellent pre-lunch introductory session on the calculation of fines and leniency. Dr. Polley is a Partner at Cleary Gottlieb Steen & Hamilton LLP in Cologne. Focusing on German and European cartel proceedings, merger control, advice on monopolies, cooperation agreements and distribution and licensing agreements, Dr. Polley has extensive experience and is considered as being one of the leading individuals for competition in Germany. Having acted as counsel in various cartel proceedings before the German and European antitrust authorities, Dr. Polley is, in particular, experienced in applying for leniency, conducting internal investigations, coordinating parallel antitrust proceedings in various countries and negotiating settlements with the antitrust authorities.
The afternoon session provided the group with an in-depth journey through investigating and sanctioning infringements in the EU/EEA. Starting with an overview of the legal basis, through to the functioning of the European Competition Network, the group learned about the EU/National competition authorities and the respective case allocation, as well as focus on recent vertical infringements at a national level. After a very comprehensive outline of the Jurisdiction of the European Commission, the discussion then moved on to an overview of steps involved in the investigation procedure and the investigative powers and fact-finding elements. We also learned about the specific Powers of the EC in conducting dawn raids and the steps to be taken and dealing appropriately with such inspections. The session ended with a discussion about the right to be heard and due process.
The next part of the session covered a very interesting part in respect of sanctioning infringements in the EU/EEA and the specifics around inter alia, providing the existence of an infringement, calculation of fines, payment and enforcement, statute of limitations and judicial review.
After lunch in the delicious Freshfields restaurant, the afternoon lecture by Dr. Polley continued with a more in-depth look at the leniency programme and its role in cartel enforcement. The group learned about applying for leniency, the duties of a leniency applicant and the consequences of lack of harmonisation and the need to empower the competition authorities in the Member States to be more effective enforcers and to ensure the “proper functioning of the internal market”. Finally, the Compliance programme was discussed with an overview of best practises in different jurisdictions.
The last session of the day was run by Dr. Dirk Middelschulte, Head of Antitrust at Unilever in Brussels. Dr. Middleschulte holds the role of Global General Counsel Competition at Unilever and prior to that, he held the position of Global Compliance Director at Danone in Paris. With experience as a prior in-house lawyer in the fields of IP, regulation and competition law, Dr. Middelschulte was able to provide the group with much advice in terms of practical applications of Competition Law Compliance. Outlining the requirements for Competition Compliance, Dr. Middleschulte outlined the consequences of antitrust violations and the personal consequences for individuals as a result of non-compliance. The group learned and discussed how emerging anti-trust regimes have been catching up and that many new regimes focus enforcement on western multinationals, the strongest market players and basic consumer goods industries. The session then covered a run through of useful documents on competition compliance and then outlined a detailed explanation all of the key elements of competition law Compliance programmes as well as an overview of risk analysis. We learned many good practical tips during this session and the overview slides were very useful and interesting.
Thursday’s lectures saw us guided through the antitrust world of US and Europe. Howard Rosenblatt is a Managing Partner at Latham & Watkins based in Brussels where he practises EU antitrust and regulatory law. Having represented some of the world’s largest companies in complex merger clearances, cartel investigations, alleged abuses of dominance as all other aspects of EU competition law, Rosenblatt has over 20 years of experience and holds a unique position of having substantial experience in both EU and US competition law.
Rosenblatt provided the group with a unique perspective from an US and European angle and used his experience to outline, firstly, the overarching principles of the Sherman Antitrust Act of 1890, the common objective of Antitrust laws, outlining very interesting case studies in support of this. We learned the overarching principles in both jurisdictions as well as some difference between US and EU Law. Then, the session progressed to cover the area of defending mergers across jurisdictions and the substantive test. Learning what the regulators are looking for, Rosenblatt provided detailed analysis of the differences between US and EU Strategies as well as outlining a couple case studies. This was wrapped up by the key lessons learned in each case and the different procedures affecting strategy. The final session featured a look at Criminal Enforcement and agreements among competitors as well as how leniency systems work.
Thereafter, the group exercise was handed out and the group was split into teams in which to start preparing their respective case preparation and presentation for the following morning. The team split up working on flip-charts, presentations, referring to legislation and the presentations of the week, fervently discussing together in the time that we had to prepare.
At the end of the day, it was time for one of the highlights - a visit to the Parlamentarium. Walking through the cobble streets altogether, there was rather an unspoken excitement at the prospect of visiting the European Parliament. The visitor’s centre is the location of a permanent exhibition containing hundreds of multimedia components, explaining the European Parliament and other European Union institutions. Arriving at the Parliament’s Espace Léopold complex in Brussels, one can feel rather akin to a scene something out of Kafka’s novel “Das Schloss”, where K. the protagonist, arrives in a village and struggles to gain access to the mysterious authorities who govern it from a castle. Indeed, if Kafka’s novel was supposed to be about unresponsive bureaucracy and the futile pursuit of an unobtainable goal, similarly, I rather found myself entering the Parlamentarium complex bedazzled by the impressive buildings and with these thoughts questioning my mind. Once we had all got through the airport-tight security, we went downstairs to the multimedia area. There, on the right-hand wall, was a very illustrious gallery of all of the various MEPs. It was very impressive. It was however, the huge 360 degree surround multimedia and interactive Parlamentarium film presentation which grabbed our imaginations and attention. For me personally, this was the highlight - again I was thinking about what it really meant to be a “European”. Sitting before the digital surround screen projecting the Plenary Chamber, we were all able to ‘experience’ how decisions are taken in Parliament, listen to debates and be guided in an educational way. The virtual tour brings politics right before your eyes and what is very powerfully demonstrated in the film are the contributions that the EU has made to each country which is coupled with a brief journey through time and some really iconic images and critical events that have impacted Europe. This was a real highlight of the module and we felt very grateful to have experienced this. Of course, on the way out there was an opportunity to purchase some “EU” merchandise at the shop… I could not help myself pick up a few “mementos” much to the amusement of my group. Interesting Christmas presents a few months after Brexit…
Friday morning saw each of the groups presenting their respective parts in a pleading exercise, expertly chaired by Dr. Von Bonin. This was a highly exciting and authentic session with some tension in the air, as each of the teams applied their knowledge and delved into the case, each representing their respective party. After a morning of presentations, Dr. Von Bonin provided valuable feedback with each team attentively listening and reflecting on what we had all learned.
The next session was led by Professor William (‘Bill’) Kovacic. He is Professor at the George Washington University Law School, currently serving as Visiting Professor at King’s College London and since 2013, he has been a Non-Executive Director of the UK Competition and Markets Authority. Professor Kovacic has a vast array of experience and having previously served on the Federal Trade Commission serving as Chairman from 2008 through to 2009, he was the also the agency’s General Counsel and he worked for the Commission from 1979 to 1983 latterly as an attorney advisor to former Commissioner Goerge W. Douglas. As well as having taught at the George Mason University School of Law since 1986, he has inter alia, also been an advisor on antitrust and consumer protection issues to numerous governments. Again, the group was extremely fortunate in having such an eminent specialist speaker and the energy and commitment to which Professor Kovacic brought to his sessions where highly enjoyable and the group seemed to hang on his every word.
The session on U.S. anti-trust on Friday afternoon was a fantastically appropriate way to end the module! Packed full of experience and context, it really did bring the whole module together in a way that was highly meaningful and engaging. Firstly, an overview of the US system, its architecture and policy trends, an overview of major US legislation and the respective important upgrades, its distinctive features, the contextual background of the US systems goals, a historical look back as to how this has developed and looking forward to how it could change and US enforcement. Session two provided an outline of doctrine and enforcement trends with a very interesting EU/US comparison, considerations of politics in competition policy, a look at some of the main cases Google, Amazon, Facebook, and looking forward to the next 24 months. The last session, on the Global Anti-trust environment considered more reflective session and wrap up after a very detailed afternoon.
After a long week, the group and team had a most enjoyable meal together near to the beautiful Grand Place. At a fabulously authentic traditional restaurant, I think the group will have fond memories of the fantastic waiter who was running around frantically whilst serving our group in a very engaged and serious manner. Whilst exiting the restaurant itself was more of a complicated affair, there were smiles all round as we headed to have a group photo at the serene Grand Place! After catching a glimpse of the famous Mannekinn Piss, we had all had a lovely evening at the end of a fabulous week.
On a sunny Saturday afternoon after yet another thrilling session from Professor Kovacic, it was time to say ”Au reviour” or “Tot ziens” (“Bye, bye”) to Brussels and Europe and our nice group. We take away memories of the beautifully lit Grand Place, the famous Manneken Pis which will continue preside over the good people of Brussels attracting tourists alike, and the politicians who will continue to debate and drive forward Europe. As well leave and look over our shoulder, we leave with a sense that we have all learned so much this week, giving us increased perspective and appreciation for the work done by lawyers and regulators alike in Competition and Antitrust law. We get ready to turn our heads toward the next module and to “jump” over the pond and hand the batten over to New York in May…
The Chairmen of the module did a highly professional delivery throughout the week and level of speakers and content on this module was of an extremely high standard. It was very clear that all the speakers had clearly worked very hard to prepare us for a challenging week, packed full with a proliferation of technical content which really stretched us, as well as providing us with the requisite platform of tools for further readings and really useful practical applications on the subject. I think all of us will be following Competition/Anti-trust law cases from now on, in a much deeper way with much more understanding and appreciation of what is really behind the newspaper headline stories.
A huge thanks must go to the hosts Freshfields, who were highly professional all round and made us all feel extremely welcome. The Freshfields restaurant chief deserves a special mention as the food was extremely healthy and very tasty! The Exec M.B.L.- HSG course tutors and team worked extremely hard to make the course to be of an excellent standard, very interesting and as always….it ran like clockwork!