Germany’s competition probe into Facebook’s T&Cs, precedent or outlier?

The German Competition Authority (BKA) has opened an investigation into Facebook “on suspicion of having abused its market power by infringing data protection rules”.   

The BKA’s press release indicates it is taking an expansive view of its competition law powers, “There is an initial suspicion that Facebook's conditions of use are in violation of data protection provisions. Not every law infringement on the part of a dominant company is also relevant under competition law. However, in the case in question Facebook’s use of unlawful terms and conditions could represent an abusive imposition of unfair conditions on users”.

This attempt to use competition law, in order regulate privacy, appears to put the BKA in conflict with the European Commission’s position: that it that it has not yet found competition problems in relation to ‘big data’ and that of the Court of Justice of the European Union: “any possible issues relating to the sensitivity of personal data are not, as such, a matter for competition law”. 

The BKA is also tacking in a different direction to the UK’s Competition and Markets Authority (CMA), which regards potentially unfair terms and conditions as a matter for enforcement under EU rules on unfair contractual terms, rather than competition law. 

It is too soon to tell whether the BKA’s interventionist approach to data protection will be followed by other national competition authorities. Here at the CLIP Board we suggest this is unlikely, rather the BKA’s investigation may be better seen in the context of German’s troubled historical relationship to personal information. However, we do anticipate increased competition scrutiny of potential foreclosure concerns in relation to dominant platforms and access to proprietary data. 

A week of Standard Setting Conferences – Part II, the London Leg

Following up on Sophie’s recent blog, it was my pleasure to be the Bristows’ attendee at the second of this week’s FRAND/standardisation conferences, along with IP partner Alan Johnson. The conference, organised by the Competition Law Forum, was well attended with a high quality panel of speakers. Among the attendees, it was very good to catch up with a couple of Bristows alumni, including David George, until recently a prolific CLIP Board blogger and now at the CAT as a referendaire – perhaps we’ll be able to persuade him to contribute a few guest blogs in future. 

On substance, as with the LCII conference on Monday, there was quite a bit of debate about the implications of recent judicial and SSO pronouncements for hold-up theories as well as the usual disagreement about where innovation in markets reliant on standardised technology really takes place and how best to incentivise it. 

An interesting point made by a couple of people was the need to recognise that those engaged in innovation through the standardisation process, and those who use standardised technology and innovate in other ways to develop products that will attract users, rely on each other to make money. Often a company will innovate in both fields, sometimes contributions are more in one aspect of innovation than the other, but the commercial success of the technology and the resultant financial rewards depend on efforts in both fields. 

On hold-up and hold-out, a number of the usual arguments were articulated. In summary, some argued that hold-up had always been theoretical, with no empirical evidence to show it had ever been a practical problem, and that following the Judgment in Huawei v ZTE (see our earlier posts here and here) it was no longer possible at all. As on Monday, however, others were not so sure. 

Those who saw remaining hold-up concerns pointed to distinctions between the clear obligations imposed on those who gave FRAND declarations under the new IEEE IP policy (no injunctions unless an implementer refuses to accept a third party adjudicated rate) described here and the less certain position under Huawei v ZTE which focuses on procedure and imposes obligations on both parties.
  
The basic approach under Huawei v ZTE was not widely criticised, but it was noted that a number of aspects of the procedure provided in the CJEU judgment were not entirely clear, leaving scope for debate and uncertainty about when the procedural requirements had been fulfilled. Given the possibility of different approaches by the courts in different member states when interpreting those requirements, some risk of injunction was still argued to exist (even for a party which had sought to comply with the CJEU’s process) implying that risks of hold up continued in the absence of some clear boundary - as under the IEEE policy. Others felt that the ability to seek an injunction was a basic right, that a threat to seek an injunction was not an abuse and that there was no need for ‘unnecessary and revolutionary changes’ such as those in the new IEEE IP policy. Such views underpinned challenges to the adoption of the policy as described here

As is almost always the case at such conferences, following recent case law in the US (see here and here) and the adoption of the IEEE policy, the linked questions of the place in the value chain at which licensing should/must take place (component manufacturer or end device manufacturer) and the appropriate royalty base (end device or smallest saleable patent practising unit (“SSPPU”) were hotly debated. Recent US cases were discussed and some expressed scepticism about importing the SSPPU concept to Europe – although the Commission’s Rambus settlement was mentioned as an example of an approach of that type. Commissioner Vestager’s comments (reported here) on the need to offer licences to all comers were also discussed. 

It was noted that a reason that these questions are so hotly contested is because they go to the fundamental question (mentioned above) of how great a share of the profits from the success of a standardised system should go to those who develop the underlying standardised technology and how great a share should go to those who design and manufacture products which consumers want to buy and to continue buying/upgrading. Not surprisingly, no resolution was reached. As ever, and as noted by Sophie in her comments on Monday’s conference, identifying what is FRAND when granting or taking a licence remains a difficult question - and central to all these debates. 

The economists present appeared to agree, broadly, with the Commission’s position in the horizontal guidelines that, while incentives to innovate should not be undermined, nevertheless in principle patented innovations incorporated in a standard should not be rewarded in a way which captures value beyond the value of the particular innovation. The economists present also appeared to agree that this was a difficult approach to apply in practice! Regular readers of this blog will recall that the recently created Fair Standards Alliance enshrines this as one of its key principles for FRAND licensing (see here). 

Finally, one company (and as this was a conference under Chatham house rules, I can’t reveal which one!) introduced an initiative to try and resolve some of the problems of SEP licensing in the forthcoming Internet of Things by creating a multiparty licensing platform to reduce transaction costs when licensing standardised technology. Guidance on the competition law treatment of patent pools can be found in the Technology Transfer Guidelines as discussed briefly here, and such initiatives have been tried in the past (including for 3G, where a pool arrangement was approved by DG Comp, when such things were still possible). It will be interesting to see how this one fares and we shall be looking out for more information…

Pat Treacy

A week of standard setting conferences - part 1: FRAND, hold-up and other mythical creatures

The context for the first of two standards-related conferences this week was the launch of the Liege Competition and innovation Institute (or LC2I to its friends). Perhaps unsurprisingly, given the sponsor, the day had something of a pro-licensor flavour, even though recent legal developments, at least in the US (see here)), have been rather more pro-implementer.

The majority of panellists seemed to consider the concept of "hold-up" - the idea that SEP holders can extract over-compensation for their rights by virtue of their inclusion in an industry standard - to be something of a mythical beast, that one can describe, but never actually encounter.  But agreement was not absolute.  Renate Hesse of the United States Department of Justice emphasised that an understanding of FRAND was necessarily founded on the potential for hold-up, even if empirical data tends to suggest that, on the whole, the industry is not in fact being 'held up'. Coming at the matter from a different angle, Professor Larouche (University of Tilburg) also noted the missing theory of harm from last year's Huawei judgment (something that was also discussed at the time, including on this blog) and pointed out that it is not only potential exclusion which can harm competition, but also exploitation, in the form of overly high royalties.  This is surely correct: however rare (or frequent) such "over-priced" licences are in practice, the FRAND concept surely implies a measure of restraint in royalty demands and is not limited, as one of the panellists suggested, to being a purely qualitative / procedural concept.

If anything, it was FRAND itself which was the "unicorn in the room": the focus of the FRAND debate has shifted over the past few years away from the question of what FRAND means, in terms of value, to more tractable - albeit still highly controversial - issues.  I would expect this trend to continue. With most SSO IPR policy reviews now having completed without consensus for change (or, in the IEEE's case, with change imposed despite the lack of consensus), the most likely focus now seems to be on measures to improve declaration processes, and to reduce possible over-declaration.  This may prove a more fertile ground for agreement, although aligning incentives, legality and cost-effectiveness is unlikely to be straightforward. 

In the meantime, we look forward to part 2 of the week of standards conferences at the BIICL this Wednesday

Standards, standards everywhere

Two conferences take place this week on the ever-hot topic of standards, SEPs and FRAND licensing - today in Brussels, courtesy of the Liege Competition and Innovation Institute, and on Wednesday in London, hosted by the BIICL.  

We are attending both conferences, and will endeavour to note points of interest here on the CLIP Board.  

By way of warm-up, the American National Standards Institute (ANSI) last week denied a final challenge to the IEEE's latest version of its IPR Policy.  That policy was introduced last year, amid significant controversy.  The imposition of limitations on licensors' rights to obtain injunctive relief as well as the indication that royalties should be paid on the basis of the smallest saleable functionality which uses the patented technology were both the subject of fierce dissent, as we reported here.

Following the failure of the challenge to the DOJ's decision to approve the IEEE's new policy, a further challenge was brought, this time to the accreditation of the IEEE.  This further action was led by Alcatel-Lucent, Qualcomm and Ericsson, and was supported by a number of other IP rich companies.  By contrast, net licensees, such as Cisco, supported the IEEE's new policy. 

While there appears to be little scope now for further challenge to the IEEE's policy, the tug-of-war between licensor and licensee positions remains an important dynamic in SEP licensing.  We expect the fireworks to continue during both conferences this week.

New technology and competition law – mapping the way

In a recent judgment, the High Court recognised that the rapid development of new products and services online presents challenges for competition law, making clear that we must have regard to the “particular characteristics” of this new online environment. The Court went on to rule in favour of Google in this abuse of dominance claim.

The claim related to the introduction of a Google Map at the top of Google’s search results page in response to certain search queries. Following his initial cautionary comments regarding new technologies, the specialist competition judge, Mr Justice Roth, went on to rule that, on the assumption that Google held a dominant position, it had not committed an abuse. He also held that Google's conduct was in any event objectively justified as it had advantages that benefitted consumers and was a proportionate way of making those advantages available to consumers. 

This important judgment offers some comfort for those working in the area, showing that the courts will grapple with the complexities of online markets when making important rulings like this one. There has been extensive commentary on the implications of the judgment including over on the Chillin’ Competition blog (here and here), and courtesy of Monckton Chambers, here.

Another interesting point in this case, was the Court’s use of a ‘new technology’. At trial, ‘hot-tubbing’ was used for the first time in a competition claim. This involved both parties’ economic experts giving evidence at the same time (rather than consecutively) and being questioned directly by the judge, with only a small window of opportunity for the barristers to ask further questions. This proved useful in narrowing down the issues and facilitating genuine debate between the experts – it remains to be seen whether a precedent has been set for future trials. 

Finally, and in the interests of full disclosure, we should mention that Bristows represented Google in this case and needless to say, we are delighted with the outcome!

Algorithmic agony? The perils of platform T&Cs

The rise of machine learning gives rise to knotty legal problems, whether these relate to how the law applies to robots and artificial intelligence*, or to algorithms which may be designed by humans, but then continue to run and 'evolve' automatically. For competition lawyers, a current topic of debate is whether machines are capable of collusion in a way which engages (or, potentially, evades) antitrust liability (see, for example, Ariel Ezrachi and Maurice Stucke's 2015 article "Artificial Intelligence and Collusion: When computers inhibit competition".

It is likely to be some time before there is anything like a definitive answer to such questions.  However, a recent Court of Justice ruling has something of this flavour, and is an important judgment for companies doing business online. 

Eturas, the case in question, concerned a platform which was used by travel agents wishing to have an online presence without the need to develop their own website. The CJEU has now endorsed the view of the Advocate General (on which we reported last year) that an anti-competitive agreement is capable of arising between members of a platform an its administrator when platform terms and conditions are updated.  This is so even if those companies had no direct knowledge of the acts of the other platform members, nor any direct contact with them - rather like the 'hub and spoke' type agreements identified between suppliers and separate distributors in a number of old OFT cases. 

The update in question in this case concerned the introduction of a cap on discounts which could be offered by platform members. Because an agreement which limits independent companies' ability to offer discounts on their separate (but competing) commercial offerings clearly infringes Article 101(1), the questions referred to the Court of Justice focussed on whether an agreement or concerted practice could be said to exist in circumstances where the participating companies had not given their express approval for the change in the T&Cs. The Court treated this as a question of the standard of proof: if the travel agents were aware of the administrator's message they may be presumed to have participated in an unlawful concerted practice unless they have publicly distanced themselves from the change, or have taken other steps sufficient to rebut the presumption of agreement.  

Much of this will be a matter for national law, subject to – on the one hand – the presumption of innocence and, on the other, the principle of effectiveness which must be observed by national legal systems when applying Treaty provisions. However, the Court made clear that national courts should not require that "excessive or unrealistic" steps be taken by companies to distance themselves from such an infringement.  Equally important is the response to the question of whether companies "ought to have been aware" of the infringement. The judgment (taking a slightly narrower approach than that suggested by the Advocate General) requires actual awareness for an infringement to be established, albeit that it may be possible, as a matter of evidence, to infer this from particular indicia which are suggestive of such awareness.  

All in all, the Court has taken a relatively cautious approach.  While the floodgates to liability have not been opened, there will no doubt be more such cases in future. In this case, the change to the T&Cs was sent by direct email to the platform members, but in principle an automated change could engage the same issues.  To avoid being one of those future cases, careful consideration should be given to the scope for excluding such liability in contractual terms agreed with platform providers and, in particular, how such relationships are managed at an operational level. It will not necessarily be the case that personnel who normally deal with such matters will have the relevant awareness of the competition rules, so appropriate training and/or supervision may need to be provided.


* Bristows colleagues Chris Holder and Vikram Khurana give a video introduction to the main legal issues and challenges presented by the rise of robotics and automation over on our sister blog, the Cookie Jar.

CMA’s mood boosted over fines for anti-depressant

The CMA has fined a number of pharmaceutical companies, including GSK, for anti-competitive conduct and agreements in relation to the supply of anti-depressant drug paroxetine (albeit not as quickly as it originally intended to do, as we reported in our blog post here).

GSK had settled litigation with several generic drug companies following allegations that the generic products would infringe GSK’s patents. The settlement terms included cash payments as well as an effective transfer of profit margins by permitting the supply of limited volumes of product to the market in place of GSK. The CMA found that these terms prevented the generic companies from entering the paroxetine market and deprived the NHS of price falls averaging 70%.

This is the first UK decision to consider the application of competition law to patent settlement agreements, and only the second such decision (following Servier) to include an abuse of dominance allegation alongside the Article 101/Chapter I infringement.  The timing is noteworthy – appeals in Lundbeck, the first Commission patent settlement decision, were heard a few months back, and the judgment must be due later this year. Having taken considerably longer than anticipated to reach the decision, the CMA has been left with a difficult choice of waiting for the General Court decision, knowing it would mean further delay but a possibly more robust legal basis for their own infringement finding, or pressing ahead, with the risk that any significant set-back for the Commission at European level could have an impact on how appeal-proof the CMA’s own decision is.

As yet, the text of the CMA’s decision has not been issued, but we may perhaps expect an approach which is somewhat different to the Commission’s, to hedge against these uncertainties.

The total fine by the CMA was just shy of £50 million, which included a fine of £37.6 million against GSK alone. The CMA clearly remains intent upon tackling abuses of competition law which impact the public purse.  More significant for GSK and the other pharmaceutical companies involved is likely to be the potential level of follow-on damages.  The Department of Health is highly likely to make a claim, and other generic companies may well also follow the pattern established with the claims that followed the OFT’s abuse finding in relation to Reckitt Benckiser’s withdrawal of Gaviscon (see here).

Sophie Lawrance and Robert Fett

The Commission’s consultation on the IP Enforcement Directive – a competition as well as an IP issue

In December 2015, the European Commission launched a public consultation on whether Directive 2004/48/EC on the enforcement of intellectual property rights (the Enforcement Directive) is still fit for purpose.  The Commission is seeking input from a wide range of stakeholders – IP owners; the judiciary and legal profession; intermediaries such as internet service providers and social media platforms; public authorities; and consumers and civil society – about their experiences of enforcing IP rights in the EU.  According to the Commission, this input is intended to support its assessment of the current legal framework governing the enforcement of IP rights and the potential need for amendments to the Enforcement Directive.  The consultation consists of five different questionnaires for the different stakeholder groups, and will end on 15 April 2016.

Origins of the consultation

The consultation stems from the Commission’s Digital Single Market and Single Market strategies, on which we have written previously (see e.g. here and here).  The Commission sees modernisation of IP enforcement as an important element of these strategies.  It has shown particular interest in adopting a ‘follow-the-money’ approach to IP enforcement, which seeks to deprive commercial-scale infringers of the revenue that draws them into such activities (rather than penalising citizens who often infringe IP rights unknowingly).  As the Commission puts it on the ‘Enforcement of intellectual property rights’ page of its website: “An efficient and effectively enforced intellectual property infrastructure is necessary to ensure the stimulation of investment in innovation and to avoid commercial-scale [IPR] infringements that result in economic harm”.  It is also focusing on the cross-border applicability of IP enforcement, suggesting that a “comprehensive enforcement policy is required to successfully combat these infringements at EU and national level, especially given the borderless nature of the internet”.

But why are competition lawyers interested in all this?

The primary purpose of the Enforcement Directive, as originally conceived in 2004, was to require all EU countries to apply equivalent sets of measures to enable IP owners to enforce their rights effectively.  Of particular relevance from a competition law perspective, however, is its further aim of preventing the abusive or disproportionate exercise of IP rights.  Recital 12 of the Preamble to the Directive directly refers to the importance of avoiding harm to competition, stating: “This Directive should not affect the application of the rules of competition, and in particular Articles 81 and 82 [now Articles 101 and 102] of the Treaty. The measures provided for in this Directive should not be used to restrict competition unduly in a manner contrary to the Treaty.”

In the run-up to this consultation, the CJEU referred to the Enforcement Directive’s treatment of the intersection between IP law and competition law in its Huawei v ZTE judgment of July 2015 (which we have written about here).  In that judgment, the CJEU considered whether the holder of a standard essential patent can seek injunctive relief against a manufacturer of standard-compliant products without abusing a dominant position under EU competition law.  In answering that question, the Court emphasised the importance of striking the right balance between “maintaining free competition” on the one hand and safeguarding IP holders’ rights – and particularly their “right to effective judicial protection” – on the other.  

The Commission’s consultation on the Enforcement Directive also raises questions relating to the intersection between IP law and competition law, albeit more obliquely.  For instance, the questionnaires for the different stakeholder groups include sections on the availability of injunctive relief, posing questions such as “Do you see a need for criteria defining the proportionality of an injunction?” and “Should the Directive explicitly establish that all types of intermediaries can be injuncted?”.  Given the past and current interventions by DG Competition into the seeking of injunctive and similar mandatory relief by holders of SEPs, these questions have direct relevance to the way in which competition law is enforced in the EU – both through public authority investigations and in private actions.

In addition, the questionnaires for the judiciary and legal profession and member states and public authorities both include the question: “Do you think that the existing rules strike the right balance between the need to effectively protect IPR and preventing IPR infringements and the need to protect fundamental rights including the right to respect for private life, the right to protection of personal data, the freedom to conduct a business as well as the freedom of information?” (emphasis added).  

If, after having reviewed the responses to its consultation, the Commission comes to the view that it is necessary to make changes to the Enforcement Directive, it is to be hoped that the Commission will bear in mind the need to maintain an appropriate balance between free competition on the one hand and the ability of IP holders to protect and enforce their rights on the other. 

The Commission’s 2016 Competition Enforcement Priorities: the Digital Economy and Standard Essential Patents

Margrethe Vestager, the European Competition Commissioner, has set out DG Competition’s enforcement priorities for 2016. 
 
In a speech to the College of Europe’s Global Competition Law Centre on 1 February 2016, she highlighted two issues that will be of particular interest to readers of this blog: the digital economy and standard essential patents (“SEPs”). 

Unsurprisingly, given the launch of the e-commerce sector enquiry last year (see our blogs on the launch of the enquiry and a review of the inquiry's scope) the digital economy was highlighted as a key enforcement priority, in particular contracts that stop retailers selling cross-border. The Commission intends to publish an issues paper on geo-blocking at Easter, aimed at tackling these online restrictions. 

The Commissioner also gave a heavy hint that the Commission is planning to bring competition enforcement cases following its e-commerce sector inquiry. 

Perhaps more surprisingly, given recent events and the degree of prominence given to SEP issues during her predecessor’s term, the Commissioner also mentioned SEPs, noting that the Motorola, Samsung and Huawei cases had set important precedents for SEPs, and that these cases had made clear that such patents must be licensed on FRAND terms. 

Finally (and not directly related to IP) the speech highlighted the need for some national competition law authorities to be given enhanced powers and suggested that the Commission was likely to propose potential new legislation to address any deficiencies.

Why a Spanish state aid decision is making EU governments nervous


In an expansion of our usual repertoire, this post is taking a quick look at the relationship between EU state aid rules and national support for national television platforms. 

The long running Spanish state aid saga, concerning the conversion of analogue television transmission to digital transmission, has reached a decisive stage with a decision by the lower European court, the General Court of the European Union (“the Court”), in 6 joined and similar cases on 26 November 2015.  Although an appeal to the European Court of Justice is technically possible, it seems unlikely.
 
What is the EU state aid regime?

For those of you unfamiliar with the state aid regime, the rules are set out in the EU Treaties (Article 107 TFEU) and govern (and attempt to limit) when EU member states can use public funds to support domestic industry.  The purpose of these rules, in common with the competition rules, is to level the playing field across the EU for industry.  Consequently, the application and interpretation of the rules are intensely political. 

What was the case about? 
 
The Court rejected appeals by a number of Spanish regional authorities against an infringement decision of the European Commission and in the process confirmed a number of important state aid principles.  

Principally, the Court upheld the Commission’s decision that the fact that the Spanish government had failed to respect the principle of ‘platform neutrality’, as its digital switchover funding was only available to Digital Terrestrial Television (“DTT”), as opposed to holding a procurement competition in which satellite, cable and internet protocol TV could also bid.  This conferred a ‘selective advantage’ on DTT in relation to its competitors and was therefore state aid. 

What makes this case interesting? 


The case raises questions about the ‘platform neutrality’ of other compensation schemes for DTT.  In particular, it highlighted the issue of whether DTT platform operators should receive compensation for regulatory changes, in this case changes to spectrum position; when this is not available to other (pay) digital television platforms. 

In the UK, the operators of the DTT platform have received public funds to compensate them for moving their channels to other spectrum frequencies.  However, the DTT platform was not selected through a competitive procurement process.  Therefore, this compensation may raise some state aid questions. 

For example, in 2014 OFCOM decided to move the DTT platform from the 700 MHz band to a lower frequency, in order to use the 700 MHz band for mobile data.  The change is estimated to have cost the UK Treasury between £550–660 million.

Equally, other (pay) television platforms do not receive similar compensation for regulatory changes, which could result in extra costs or a loss of income.  For example, the Department of Culture Media and Sport’s (“DCMS”) 2015 proposal to deregulate the Communications Act 2003 (“the Act”) may make it harder for Sky to charge public service broadcasters for ‘technical platform services’. 

How about future implications? 

The Spanish DTT case also suggests that similar compensation schemes for converting analogue to digital radio, using the Digital Audio Broadcasting (“DAB”) system, may be challenged by the Commission, again on the basis of ‘platform neutrality’. 

Unless EU member states hold public procurement competitions to select the technical solution for the provision of digital radio, they could therefore be open to allegations of state aid, as there are a number of competing technical systems to DAB; such as DRM+, HD Radio and DVB-T.