Antitrust Activism

I.        Introduction

Recent antitrust activity showed relevant cases moving forward in a reminder that antitrust can be one of the most effective legal measures to put some limit to an era of globalization that has raised many criticisms.The current economic crisis that –under a formal view- began in 2008 with the falling of Lehman Brothers, ringed many bells in connection with the so called Too Big To Fail Companies.[1] Several claims and some proposals to limit the size of those companies were raised but no new regulation was enacted yet. In these circumstances, antitrust activism could be seen as the only effective way to restrict the size or somehow limit the growing potential of companies.

II.      Europe and Microsoft: an old claim comes to an end

In 1997 Antitrust proceedings were initiated against Microsoft in regard to Internet Explorer, its web browser. The argument was that, since the Internet Explorer was built-in every Windows system, Microsoft was abusing of its position. At the time, a direct victim of this situation was Netscape, a company which developed a browser that was threatening Internet Explorer gaining users day by day.After a long and detailed analysis, a settlement was reached requiring Microsoft to share its application programming interfaces with third-party companies.[2]Some years later, Netscape disappeared from the market and the antitrust complaint against Microsoft’s Internet Explorer reached Europe. [3]In December 2009, the European Commission announced that Microsoft acceded to settle the case.[4]Under the settlement agreement, Microsoft committed to distribute its Windows operating system in Europe including a “choice screen” giving users the capacity to choose the web browser they prefer to use rather than imposing the already-installed Internet Explorer. Thus, Windows users in Europe will have 12 web browsers to choose from, including Internet Explorer and other web browsers provided by Microsoft’s competitors. [5]Microsoft’s committed to offer this “choice screen” for 5 years. [6]In March 2, 2010, the European Commission issued a Press Release celebrating Microsoft’s implementation of the settlement. The heading of such Press Release stated the following:

 

The European Commission welcomes the implementation by Microsoft of its commitment to give consumers in the European Union the opportunity to choose from a variety of browsers to access and surf the Internet. From the beginning of March, users of Windows PCs who have Internet Explorer as default web browser are being provided with a browser Choice Screen, designed to give them an effective and unbiased choice between their default and competing web browsers. This should ensure competition on the merits and allow consumers to benefit from technical developments and innovation both on the web browser market and on related markets, such as web-based applications.[7]

 

According to the Press Release, since March 2010 European Windows users who receive automatic updates for their operating systems and have Microsoft’s browser set as default will be offered the possibility to choose their browser through the “choice screen”. It is expected that the browser “choice screen” will be displayed on over 100 million computers in Europe by mid-May 2010. The central page of the choice screen is also available to any internet user at http://www.browserchoice.eu .The effectiveness of the EU’s measures will be seen soon. Yet, it is clear that Microsoft will not have an easy time “spontaneously” offering its users to replace Internet Explorer with other competitors’ browsers.The Economist evaluated the case as follows: “This settlement goes much further than an inconsequential deal that Microsoft struck in America in the early part of this decade. But it still invites questions over whether Europe’s case was worth the trouble.[8]There is no doubt that the Microsoft Internet Explorer case, in its American and European version, became a major antitrust case in history.

III.   Europe and Google: an upcoming fight

In February 2010 it was made public that the EU Competition Commission was investigating Google on antitrust-related matters. While the investigation is yet to become formal, there have been initial approaches between European officers and Google with regard to three complaints filed with the Commission. [9]Foundem, a price comparison site, is deemed to be one of the complainants. [10] Ejustice.fr, a legal information French site is to be another one. [11]But perhaps most interesting is the fact that the third complaint was raised by Ciao, an online shopping site that was acquired by Microsoft to become part of Bing, its search engine. [12]Among the main allegations set forth by plaintiffs is the fact that Google penalizes certain websites by excluding them from Google’s search results. [13] In overall, the complaints addressed Google’s search and advertising system. Google has denied the accusations and explained that searches are conducted by algorithms without any “penalty” or similar measure adopted. [14]Google’s dominant position in the search engine market seems not to be in question. It is said to have about a 65% share of the US market and about 90% in Europe [15] or even more. [16] But the relevant issue is how the company behaves while being in that position –if it abuses of that advantage-.This might be the beginning of a major antitrust investigation. Indeed, if Google’s search engine and advertising system –the core business of the company—are put under investigation, it will not be difficult to find similarities between such case and the Internet Explorer investigation run over Microsoft until December 2009. The matter is yet to be resolved, but it certainly promises an interesting outcome.

IV.    Argentina and Telecom: a Complex Ongoing Case

During the 1990s Argentina decided to turn private many of the public utilities companies and the phone service company (ENTEL) was among them. After a bidding process, and with the idea of avoiding a monopoly to occur in that market, the Argentinean Government decided to assign half of ENTEL to Telecom Italia and the other half to Telefonica from Spain.In January 2009, the Argentinean Competition Commission initiated an investigation to determine if Telefonica’s acquisition of certain stock on Telecom parent companies – incorporated abroad— had the effect of creating a dominant position in the Argentinean telecommunications market. [17]Some months later, the Argentinean Secretary of Internal Commerce enacted Resolution 483 which ordered Telecom Italy to disinvest in Telecom Argentina given that the entering of Telefonica in Telecom Italy’s capital affected the competition in the Argentinean market. [18]In February 2010, the Argentinean Courts overruled Resolution 483. Telecom had brought the case with the Courts claiming that the Argentinean Competition Commission violated Telecom’s right of defense during the administrative proceedings that generated the grounds for Resolution 483. [19]The Courts ordered a new investigation to be conducted under the direction of a Government officer different that the one in charge before –evidencing the political issues that were present behind this case. [20]Complying with the Court’s order, in February 24, 2010, the Government appointed a new officer to conduct the investigation. [21] The Government instructed the new officer to assure Telecom the exercise of its right of defense.Surprisingly, in March 11, 2010, Telecom announced immense profits for its last fiscal period and that it would make important investments in the near future in Argentina. [22]At the same time that the Competition Commission is conducting this investigation, Telecom is suffering internal disputes among its shareholders.[23]With more than 15.000 employees, Telecom is one of the most important companies in Argentina.The case is expected to be decided soon since the Argentinean Government and Telecom have important interests at stake.

V.      Antitrust Activism

These are three of many antitrust cases currently going on in the world, which serve as a signal of how active and relevant this area of law remains for international business.Antitrust regulation has existed for more than 100 years. Yet, there is no doubt that globalization process –both in the economic and the technological sense-, put things to extremes not seen decades before.The economic and financial crisis that formally began with the fall of Lehman Brothers in 2008 is still extending its effects to current times with no clear dead line. That crisis pointed out that some companies are too interconnected in this modern world and, under certain circumstances, can be a threat to national economies –and even to the global one-. [24]Nevertheless, no new regulation was enacted to address that point and antitrust rules seem to remain the only ones to set forth some limits to the size of companies in modern times. 


[1] Bill Saporito, How AIG Became Too Big to Fail, Time Magazine, Mar. 19, 2009, available at http://www.time.com/time/business/article/0,8599,1886275,00.html. See also Jamie Dimon, No more ‘too big to fail’, Washington Post, Nov. 13, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/11/12/AR2009111209924.html. U.S. Treasury Secretary, Timothy Geithner, said: “No financial system can operate efficiently if financial institutions and investors assume that government will protect them from the consequences of failure.” The term “too big to fail” must be excised from our vocabulary. Id. See also Michael McKee and Scott Lanman, Greenspan Says U.S. Should Consider Breaking Up Large Banks, Bloomberg, Oct. 15, 2009, available at http://www.bloomberg.com/apps/ news?pid=20601087&sid=aJ8HPmNUfchg. According to Former Federal Reserve Chairman Alan Greenspan, “U.S. regulators should consider breaking up large financial institutions considered too big to fail.Id.
[2]Microsoft Case, FindLaw special coverage, http://news.findlaw.com/legalnews/lit/microsoft/ (last visited March 14, 2010).  See also Microsoft Legal News, http://www.microsoft.com/presspass/legal/default.mspx (last visited March 14, 210); Open Law: The Microsoft Case, Harvard Law School, http://cyber.law.harvard.edu/msdoj/ (last visited March 14, 2010).
[3] Editorial, Microsoft and antitrust – The end, sort of, The Economist, Dec.  16, 2009, available at http://www.economist.com/business-finance/displaystory.cfm?story_id=15108468.
[4] Kevin J. O’Brien, Europe Drops Microsoft Antitrust Case, The New York Times, Dec. 16, 2009, available at http://www.nytimes.com/2009/12/17/business/global/17msft.html?_r=2. See also Lance Whitney, EU resolves Microsoft IE antitrust case, Cnet News, Dec. 16, 2009, available at http://news.cnet.com/8301-10805_3-10416402-75.html.
[5] Editorial, supra note 3.
[7] Id.
[8] Editorial, supra note 3.
[9] Richard Waters and Nikki Tait, Google faces Brussels antitrust scrutiny, Financial Times, Feb. 24, 2010, available at  http://www.ft.com/cms/s/2/46018520-20da-11df-b920-00144feab49a.html.
[10] Kamal Ahmed, Google under investigation for alleged breach of EU competition rules, The Telegraph, Feb. 24, 2010, available at http://www.telegraph.co.uk/technology/google/7301299/Google-under-investigation-for-alleged-breach-of-EU-competition-rules.html.
[11] Id.
[12] Id.
[13] Id.
[14] Waters and Tait, supra note 9.
[15] Editorial, Google faces European competition inquiry, BBC News, Feb. 24, 2010, available at http://news.bbc.co.uk/2/hi/8533551.stm.
[16] Waters and Tait, supra note 9.
[17] Editorial, Defensa de la Competencia en contra de Telecom Italia, Revista Mercado, April 22, 2009, available at http://www.mercado.com.ar/nota.php?id=360906.
[18] Editorial, Feletti, a cargo del caso Telecom, La Nación, Feb. 24, 2010, available at http://www.lanacion.com.ar/nota.asp?nota_id=1236973.
[19] Id.
[20] Id.
[21] Editorial, Telecom Italia podrá defenderse ante la CNDC, La Nacion, Feb. 25, 2010, available at .
[22] Editorial, Telecom invertirá $ 2000 millones, La Nación, March 11, 2010, available at http://www.lanacion.com.ar/nota.asp?nota_id=1242024.
[23] Editorial, Suspendieron a los Directores Nombrados por Telecom Italia, Abogados.com.ar, March 12, 2010, available at http://www.abogados.com.ar/suspendieron-a-los-directores-nombrados-por-telecom-italia/5158. See also Editorial, Solicitan reincorporar directores de Telecom, La Nacion, March 13, 2010, available at http://www.lanacion.com.ar/nota.asp?nota_id=1242939&origen=NLEco.
[24] See supra note 1. See also G. Morales Oliver, 2008/9 Financial Crisis: A Lot to Learn On Bailouts and Too Big To Fail Companies In Order To Draft New Regulation, Illinois Business Law Journal, December 3, 2009, available at http://www.law.uiuc.edu/bljournal/post/2009/12/03/20089-Financial-Crisis-A-Lot-to-Learn-On-Bailouts-and-Too-Big-To-Fail-Companies-In-Order-To-Draft-New-Regulation.aspx.

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