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The Innovation Economics Conference for Antitrust Lawyers THE INNOVATION ECONOMICS CONFERENCE FOR ANTITRUST LAWYERS 1 March 2019 King’s College London SPONSORS MEDIA SPONSOR 151 ATTENDEES 35 CORPORATIONS 25 LAW FIRMS st 21 Century Fox KBC Group Allen & Overy Hogan Lovells American Express Services Kelly Services Baker Botts Holman Fenwick Willan Argus Media Group Lietuvos energija Lloyds Banking Group Auka Baker McKenzie Legance - Avvocati associati Openreach Barclays Bank BBLM Avocats Linklaters PSA International British Airways Safran Clifford Chance Luiss Guido Carli Channel 4 Samsung Cooley Norton Rose Fulbright DEPA Sky Quinn Emanuel Urquhart Direct Line Group Sumitomo Electric DLA Piper Telefonica & Sullivan Equifax ELIG Gürkaynak Tesco Federation of German Attorneys-at-Law Shearman & Sterling Industries (BDI) The LEGO Group Eversheds Sutherland Skadden General Electric Three TMC Taylor Wessing GPI Freshfields Bruckhaus Uber Deringer HSBC White & Case Visa Intesa Sanpaolo ZX Ventures Herbert Smith Freehills Yulchon 15 ENFORCEMENT AGENCIES Comisión Nacional de los Mercados y la Competencia DG COMP Competition and Markets Authority European Central Bank Competition Appeal Tribunal Financial Conduct Authority Competition Council of the Republic of Lithuania OFGEM Competitive Council of Latvia Scottish and Southern Energy Competitive Council of Latvia Single Source Regulations Office Danish Competition and Consumer Authority UOKiK 1 THE INNOVATION ECONOMICS CONFERENCE - King’s College London - 1 March 2019 PROGRAM 9:00 COFFEE & REGISTRATION 13:30 POST-MORTEM 9:15 WELCOME ANALYSIS OF CLEARED Gillian DOUGLAS | Executive Dean, King’s College London MERGERS: WHERE IS THE INNOVATION? 10:00 Richard WHISH QC (Hon) | Emeritus Professor, King’s College London BANKING AND BIG DATA: Colin RAFTERY | Senior Director of Mergers, CMA, London SHOULD INCUMBENTS Alvaro RAMOS | Senior Director - Head of Global Antitrust GET ACCESS TO Qualcomm, San Diego James AITKEN | Partner, Freshfields Bruckhaus Deringer, London FINTECHS’ DATA? Justin COOMBS | Executive Vice President, Compass Lexecon, London Adam LAND | Senior Director of Remedies Business Moderator: Maria IOANNIDOU | Senior Lecturer in Competition Law and Financial Analysis CMA, London Queen Mary University of London Sheldon MILLS | Director of Competition Financial Conduct Authority, London 15:30 COFFEE BREAK Natalia PRZYSTASZ | Head of Legal, Auka, Oslo Matthew READINGS | Partner, Shearman & Sterling, London/Brussels 16:00 Stefano TRENTO | Vice President, Compass Lexecon, London/Madrid KILLER ACQUISITIONS: Moderator: Ingrid VANDENBORRE | Partner, Skadden, Brussels CAN THEY BE PREVENTED? Colleen CUNNINGHAM | Assistant Professor of Strategy 12:00 LUNCH KEYNOTE and Entrepreneurship London Business School Peter FREEMAN | Chairman, Competition Appeal Tribunal, London Giulio FEDERICO | Head of Unit - Chief Economist Team DG COMP, Brussels Sarah HARPER | Director - Competition Law, Visa, London 12:30 LUNCH Lorenzo COPPI | Executive Vice President, Compass Lexecon London/Brussels Jacquelyn MACLENNAN | Partner, White & Case, London/Brussels Moderator: Renato NAZZINI | Professor, King’s College London 18:00 RECEPTION THE INNOVATION ECONOMICS CONFERENCE - King’s College London - 1 March 2019 2 KEYNOTE ADDRESS PETER FREEMAN eter Freeman* (Chairman, Competition Appeal Restrictive Practices Court and deferential judicial review Tribunal) delivered the lunch keynote speech about by the general courts. For merger and market decisions, P the appeal system for competition infringement where the Commission acted as an independent ‘phase cases. 2’ authority, judicial review was deemed to provide a sufficient level of accountability. However, for competition Mr. Freeman started by noting that the conference’s topics infringement appeals, a full merits approach was needed, are drawn from the array of challenges that the digital given the quasi-criminal nature of infringement decisions economy has brought to competition law at the age of and in order to provide the recourse to an impartial and fast-moving innovation, big data and the growth of IT-based independent tribunal. companies, emphasizing that the United Kingdom is proactive in that regard. Furthermore, Mr. Freeman addressed the reproach made by those who have regarded the system as imposing an Mr. Freeman referred to the Consumer Green Paper, unnecessary second tier, substantive assessment, that it published in April 2018 by the Department for Business, allows the CAT to conduct a complete re-hearing of an Energy and Industrial Policy, which discusses a wide range authority’s decision, using evidence not available to the of issues relating to consumer law, digital markets, and the authority, and those who said that the CAT substitutes its regulated sectors. A proposal “to reinvigorate the UK’s own decisions, thus thwarting the effectiveness of the competition regime, to safeguard the interests of consumers enforcement system. According to Mr. Freedman, these in the modern economy, while improving public confidence criticisms are greatly over-stated and do not accord with in competitive market” has been put forward by the Chairman the facts. of the CMA, Lord Andrew Tyrie in the form of a letter in response to a request from the Secretary of State for advice. Mr. Freeman made clear that the CAT is required to determine Mr. Freeman specified that the proposal, which covers a the appeal on the merits by reference to the grounds of wide range of issues, focuses on enhancing the CMA’s appeal. It is not able to roam freely over the subject matter commitment to consumer interests and making competition of the decision; appeals are often on quite narrow and law more relevant to current economic conditions. This specific points and even on those specific issues. proposal is in line with the material set out in the Green The process is adversarial not inquisitorial. The CAT’s Paper and justifies serious consideration. approach is conditioned by the case that is being made to it. Mr. Freeman also mentioned that the CAT gives due Mr. Freeman then reminded that some have stated that weight to the authority’s findings that are properly and the appeal system for competition infringement cases is reliably arrived at, eventually stating that the CAT is merely not fit for purpose and should be in some way curtailed, * This summary and holding the decision-maker to account. the views expressed or lightened, or reduced. Mr. Freeman explained that the cannot be deemed Appeal Tribunal (CAT) results from the need for a system Mr. Freeman raised as a key point the fact that in merits to reflect the position of the speakers’ of accountability that would replace the previous system appeals, unlike judicial review, the CAT considers not only institutions. of Ministerial decisions or approvals, decisions by the whether the decision was reached fairly, legally and rationally, 3 THE INNOVATION ECONOMICS CONFERENCE - King’s College London - 1 March 2019 but also whether it was right. Mr. Freeman identifies that complex and devious; and the economics of market power sometimes elusive possibility as providing the essential and abuse have become ever more abstruse. safety valve for a prohibition system. However, other things have not changed. Mr. Freeman Finally, Mr. Freeman explained that bringing successful concluded by emphasizing that the challenge for a competition cases to the point of decision has certainly competition authority remains to act fairly and effectively become more difficult, as has hearing appeals from such decisions. Competition assessments have become more to promote competition. According to Mr. Freeman, the sophisticated, driven by data and analytical techniques; need for a robust appeal system is not diminished by the competition decisions have become longer, buttressed by challenges of applying competition law in the digital economy; economic evidence; cartel behavior has become more if anything, the need is greater. THE INNOVATION ECONOMICS CONFERENCE - King’s College London - 1 March 2019 4 PANEL 1 BANKING AND BIG DATA: SHOULD INCUMBENTS GET ACCESS TO FINTECHS’ DATA? he first panel of the conference, moderated by Regarding remedies to tackle these issues, Mr. Land argued Ingrid Vandenborre I 1 I (Partner, Skadden, Brussels), that divestiture and break-ups would increase the number of T dealt with specific competition issues related to financial providers, and gave the example of Lloyd’s Banking Group, technology (“FinTech”, i.e. technological innovation in the which, following the financial crisis, was required by the financial sector, including lending and borrowing, retail banking, European Commission to break off TSB in the UK. TSB became money payments, investment management, etc.), with a a competitor. Mr. Land mentioned that more direct regulation particular focus on the banking sector. Ms. Vandenborre started of outcomes, e.g. overdraft charges, is also an option. by reminding that the European Parliament initiated a study Mr. Land emphasized that the CMA chose to introduce a framing some competition issues related to financial technology data-based remedy, i.e. open banking, as the central element and challenges raised by FinTech. Ms. Vandenborre emphasized of its remedy package. Mr. Land explained that, when money specific difficulties in defining markets in the banking sector is spent using a banking account, data about consumption shaped by FinTech, as well as difficulties in assessing market patterns is generated, this data being a valuable asset held power, given that traditional indicators
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