Cradle’s Post

Introducing the DCR Blog! This week we are helping you narrow down your options for great technology! Read our new blog "A Comprehensive Buying Guide to Quality Tech at Affordable Prices!" by heading to dcr.ca/blog or clicking the link in our bio!

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🥂 A glass of champagne is appropriate at lunch today. The Court of Justice of the European Union delivered its second Intel judgment, this time on appeal from the General Court’s renvoi judgment of January 2022. The GC’s judgment is confirmed, which means that the 2009 European Commission decision (for its most part - apart from "naked restrictions") remains annulled. Today’s judgment is, of course, not as consequential as the 2017 judgment of the Grand Chamber, which modernized the whole of Article 102 TFEU by espousing fully the effects-based approach. However, the Court has produced a very well written judgment that is a true “clarification” of what it meant in 2017. It is also a great guide in terms of evidentiary standards. The judgment has profound consequences for the Commission’s draft Guidelines on exclusionary abuses. As I had explained in my “J’accuse” blog (or “rant” as my friends at the Commission call it 😁) (see here: https://lnkd.in/d9K4mjqs), the use of the word “presumption” in the Intel renvoi judgment was not appropriate. I was holding my breath to see whether the Court would use this word. I am glad to see that the Court now uses the “presum*” word only when it refers to Germany’s and the Commission’s arguments (paras 114 and 141) but markedly ignores it in its reasoning. So, effectively, the idea of a “presumption” for exclusivity rebates has gone down in flames…. Read, in particular, paras 328, 330-331. Also going down in flames is the cardinal distinction in the draft Guidelines between exclusivity and other conditional-loyalty rebates, each having different tests. Read paras 178-179 of the judgment… One more problem for the draft Guidelines is that they have forgotten (?) to mention the importance of coverage for loyalty rebates (in para. 145). Well, look at today’s judgment to see how important that condition is! So, after this debacle, what should the Commission do? If the Commission wants to tighten a bit the screws, while remaining consistent with the case law, the only way forward is to abandon the three categories altogether and no longer speak of “presumptions” in the sense of allocating the evidentiary burden. Instead, it should put together a pyramid of practices based on a sliding scale of evidence that is required to prove foreclosure (see also the many references in today’s judgment to “evidential value”): I would start from naked restrictions (top of the pyramid), then down to predation below AVC, then predation between AVC and ATC, then reprisal abuses, then margin squeeze with negative spreads, then exclusive dealing, then rebates, tying, refusal to supply, access restrictions, margin squeeze with positive spreads, self-preferencing (all of the latter at the basis of the pyramid). I would also make clear that what counts most is not the box, in which you put a practice, but its economic function and actual or likely effects (in the sense of what the theory of harm is).

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Finally, the nation is coming around to the public policy Black Dot has always actively pulled an oar for in the ( catalytic) financial services industry. As a side -bar, thrilled to assert the "I told you rights" on this one. I had observed on X that the Econ Survey this year is likely to have a "DOGE" flavor. The CEA was transmitting that since the CII event this past November. { See a post from earlier in comments} Now for the main course of actually pushing back against regulatory State in financial services and other emergent industries. I have no illusions that this will be easy. Only a conviction that the nation deserves it, and that it's imminent. { Quote begins} #EcoSurvey pushes for “deregulation”. CEA says “Getting out of the way” and allowing businesses to focus on their core mission is a significant contribution that governments around the country can make to foster innovation and enhance competitiveness. The most effective policies governments - Union and States - in the country can embrace is to give entrepreneurs and households back their time and mental bandwidth. That means rolling back regulation significantly. That means vowing and acting to stop micromanaging economic activity and embracing risk-based regulations. That means changing the operating principle of regulations from ‘guilty until proven innocent’ to ‘innocent until proven guilty' { Quote brought to you courtesy of the always on- point, #ShereenBhan & #CNBCTV18 }

The Black Labour Market Portal is on the horizon, poised to make a significant impact: This portal signifies a crucial advancement in tackling deep-rooted inequalities and promoting economic empowerment among the Black community. Designed to cater to job seekers, entrepreneurs, and employers, it holds the key to bridging divides, unleashing untapped potential, and paving the way for prosperity. The effectiveness of this initiative hinges on cohesive teamwork, continuous financial support, and a steadfast dedication to fostering inclusivity and fairness. Watch more about this initiative here: https://lnkd.in/gWzYSisi

Voting is open, everyone! Remember, you can vote once per day, per device. Tablet + Phone + Laptop = THREE votes! Here's how: 1. Click the link: https://lnkd.in/e7FK6C5G 2. Click the "Voting Starts Here" button 3. Under "Categories", choose "Schools"> "Trade/Vocational School/College" > "Computer Coach Training Center" 4. Scroll down to click "Add Vote" No personal information input necessary!

In case you missed it, check your email for yesterday's issue of CDHA Connect e-newsletter. Highlights include the announcement of 2024 award winners, a conference update, membership renewal reminder, our latest social media campaign, staffing additions, what's new with the CDCP, and more! Read all about it!

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