Grimsdale's Ire: 06/01/09

David Cameron calls for league tables to improve UK prisons: Cameron criticises size of Titan prisons and attacks lack of focus on rehabilitation
"David Cameron said today that he would introduce league tables for prisons to cut reoffending rates with an increased emphasis on rehabilitation and follow-up care after release. The Tory leader also indicated that he was against the government's "Titan prisons", which he thought were a "bad idea".

"The idea that big is beautiful with prisons is wrong," he told 20 handpicked members of the public in Manchester, in a session led by Channel M television presenter Andy Crane. "I have spent some time in prison – purely in a professional capacity – at Wandsworth prison and was profoundly depressed by the size and impersonality," Cameron said. "I asked the governor what percentage offend when they leave prison and he couldn't tell me..."The system is not designed that way; it is just designed to put them in prison and hold them there, locked in cells for up to 23 hours a day, and then let them out. Every other public service is paid for by result."" [Guardian]

Gambling levy to be forced on gaming firms: "Sports minister outlines plans for levy to fund treatment of problem gamblers
"Gambling companies may have to pay a compulsory £5m-a-year levy because of their "very disappointing" failure to fully fund treatment for gambling addicts, the government said today. Publishing a consultation paper, sports minister Gerry Sutcliffe said the money would be used to fund helplines and treatment centres for gambling addicts, as well as to pay for research.

Sutcliffe said the government was resorting to a compulsory levy because gaming firms were failing to fund this sort of treatment on a voluntary basis. The industry has three months to draft an acceptable voluntary scheme or the government will quickly impose its alternative." [Guardian]

Iceland may take UK to European court over freezing of bank assets: Reykjavik hopes court of human rights will award damages after Gordon Brown froze Icelandic banks' assets
"The Icelandic government is examining "all possibilities" of dragging the British government before the European court of human rights over its decision to use anti-terror laws against the bank Landsbanki, it emerged today.

The move, revealed in a statement by the office of Iceland's prime minister, Geir Haarde, follows legal advice that a claim for damages in the UK courts would be unlikely to succeed.Reykjavik is looking at the European court as an "alternative option" to seek redress over Gordon Brown's decision to use the Anti-Terrorism, Crime and Security Act 2001 to seize assets." [Guardian]

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EU Commission: Competition - 30/12/08

EUROPEAN PARLIAMENT QUESTIONS SONYBMG APPROVALS
"The elected European Parliament has challenged the European Commission about it's speedy decision earlier this year to allow Sony Music to buy Bertelsmann out of the two companies' joint venture record company, SonyBMG, which put the second biggest music firm in the world into the ownership of one organisation, Sony Corp.

They also question the Commission's wider policy regarding allowing such big companies to be created in the music and cultural industries without safeguards to protect smaller independent firms - in essence questioning the approval of the SonyBMG merger in the first place." [CMUDaily]

Sony BMG Merger Still Under Scrutiny December 23, 2008
"The European Parliament continues to seek further scrutiny of the Sony BMG merger, although the major has since demerged and will officially be renamed Sony Music Entertainment in 2009. EC Commissioner for competition Neelie Kroes has six weeks to provide a written explanation regarding competition in the music market." [Billboard]

The standard of proof in EC merger control: the implications of the Sony BMG saga
"One of the most important developments in EC competition policy during 2006 was the Court of First Instance’s (CFI) Impala v. Commission judgment annulling the European Commission’s approval of the merger between the music units of Sony and Bertelsmann. It harshly criticized the Commission’s Decision because it found that the evidence relied on was not capable of substantiating the conclusion. This was the first time that a merger decision was annulled for not meeting the requisite legal standard for authorizing the merger. Consequently, the CFI raised fundamental questions about the standard of proof incumbent on the Commission in its merger review procedures. On July 10, 2008, the European Court of Justice overturned Impala, yet it did not resolve the fundamental question underlying the judicial review of the Sony BMG Decision; does the Commission have the necessary resources and expertise to meet the Community Court’s standard of proof? This paper addresses the wider implications of the Sony BMG saga for the Commission’s future handling of complex merger investigations. It argues that the Commission may have set itself an impossible precedent in the second approval of the merger. While the Commission has made a substantial attempt to meet the high standard of proof imposed by the Community Courts, it is doubtful that it will be able to jump the fence again in a similar fashion under normal procedural circumstances." [IES]

Pan-European Indie Label Group Attacks EC’s Decision to Allow Sony Corporation Buyout of Sony BMG (Because In Other Parts of the World, People Actually Freak Out When This Shit Happens)
"Thanks to the European Commission’s decision to let Sony Corporation gobble up Sony BMG, we’re one step closer to a multi-headed monster that will be known as Sony Music Entertainment Inc. The EC’s 2007 decision to allow the merger means that Sony Corporation of America is now free to acquire the 50% share held by Bertelsmann AG of Germany in Sony BMG. Yikes." [TinyMixTapes]

EU Commission: Competition - 12/08/08

The European Commission’s Reexamination of the SonyBMG Merger: A Precedent-Setting Attempt to Jump the Fence August 11, 2008
ABSTRACT: On July 13, 2006, the European Court of First Instance annulled the European Commission’s decision authorizing the creation of Sony BMG, a joint venture incorporating the worldwide recorded music businesses of Sony and Bertelsmann. In its 2004 clearance decision, the Commission had concluded that the merger would not create or strengthen a collective dominance position on the part of the majors (i.e., Universal, Sony BMG, Warner, and EMI). In Impala v. Commission, however, the CFI harshly criticized the decision because it found that the evidence relied on by the Commission was not capable of substantiating this conclusion. [LawProfessors]

Impala vs. Commission... and the alleged 'blow' for the Commission 12/08/06
It took me a while to go through the IMPALA vs. Commission judgment. Everyone knows the story: the CFI quashed down the Commission's clearance of the JV between Sony and Bertelsmann. The Commission, after having raised serious objections against the transaction (on the grounds that there was arguably tacit collusion on the market prior to the merger, and that this situation would be further strengthened following completion of the transaction) made a surprising U-turn and cleared the deal without further objections. [ProfessorGeradin]

The Commission's Non Contractual Liability in the Field of Merger Control - Don't Use a Hammer When You Need a Screwdriver 01/07/07
It has become conventional wisdom to view the rulings handed down by the CFI in Airtours, Schneider, Tetra Laval and Impala as unprecedented setbacks for the European Commission ("the Commission") that would usher in a new era of administrative accountability in the field of merger control. However, several commentators still consider that the Commission regretfully enjoys a de facto power of "life or death" over notified mergers, and that judgments striking down its decisions are unlikely to change much in practice. Parties to a blocked merger generally abandon their projects following the Commission's decision, irrespective of the outcome of the actions they may subsequently bring before the EC Courts (e.g. the Airtours/First Choice or Schneider/Legrand mergers). Third parties - competitors or consumers - to an illegally approved merger have little prospect of inducing the Commission to unscramble a consummated transaction (e.g. the Sony/BMG merger).

Commission again clears music giants' merger 3 October 2007
The European Commission has cleared, for a second time and without imposing any 'remedies', the joint venture between music companies Sony and BMG, which had been set aside by the European Court of Justice in 2006. [Euractiv]

EU Public Affairs Monitor - 30/07/08

Bertelsmania comes to Luxembourg 11 July 2008
"They don't come much longer and more complex than Case C-413/06 P Bertelsmann and Sony Corporation of America v Impala, yesterday's decision of the Court of Justice of the European Communities in a case that, while not actually being an IP case, says a lot about how the ECJ views the concentration of IP rights -- even weak ones like copyrights.

The ECJ was asked to rule on an appeal against the decision of the Court of First Instance (CFI). That court, in a controversial decision, annulled the European Commission's approval of a 2004 merger between Sony Music and BMG. According to the CFI, the examination into whether there was already collective market dominance in the music industry, and whether that dominance might grow following the Sony BMG deal, was too cursory." [IPKitten]

Did MEPs vote to cut off copyright infringers' internet?
"The Registry reports that Members of the European Parlioament (MEPs) may have accidentally included measures forcing ISPs to cut off internet access for those who infringe copyright through dowloading. The test calls for "cooperation" between ISPs and those "interested in the protection and promotion of lawful content". The trouble is, no one quite knows what "cooperation" means, including Malcolm Harbor, one of the MEPs responsible for the text." [IPKitten]

International Confederation Condemns U.S. Orphan Works Act
"CIAGP is the visual arts division of CISAC. CIAGP collectively acts for over 100,000 artists, photographers and illustrators through artists rights societies in 31 countries. CISAC works towards increased recognition and protection of creators' rights. Founded in 1926, CISAC is a non-profit organization headquartered in Paris."

Well, well, well. Hundreds of thousands of artists around the world have come out against orphan works. And you know what? They managed to do it without taking money from Michael Petricone, Gary Shapiro, or the Digital Freedom Campaign. Or Google for that matter. In fact, these artists are probably the only ones who haven't taken the king's shilling." [MusicTechPolicy]

EU Commission: Competition - 28/07/08

Rebalancing EC Merger Control: The ECJ’s Judgment in Case C-413/06 P (Bertelsmann and Sony) July 28th, 2008
"On July 10, 2008, the European Court of Justice overturned the European Court of First Instance’s Impala judgment, which had previously quashed the European Commission’s clearance decision of the Sony/BMG merger. Even though the ECJ judgment contains no groundbreaking novelties, it brings some important clarifications with regard to a number of procedural and substantive issues of EC merger control law.

The judgment is of particular interest because the ECJ commented for the first time on the CFI's Airtours criteria for the establishment of collective dominance. With regard to procedural issues, the ECJ largely restores the pre-Impala situation and reduces the uncertainty and imbalance caused by the CFI’s judgment as to the importance of the statement of objections (“SO”), the conduct of merger control proceedings before and after the adoption of a SO, and the standard of proof and of adequate reasoning that the Commission has to respect when drafting merger control decisions." [GlobalCompetitionPolicy]

The European Commission’s Reexamination of the SonyBMG Merger: A Precedent-Setting Attempt to Jump the Fence July 22nd, 2008
"On July 13, 2006, the European Court of First Instance annulled the European Commission’s decision authorizing the creation of Sony BMG, a joint venture incorporating the worldwide recorded music businesses of Sony and Bertelsmann. In its 2004 clearance decision, the Commission had concluded that the merger would not create or strengthen a collective dominance position on the part of the majors (i.e., Universal, Sony BMG, Warner, and EMI). In Impala v. Commission, however, the CFI harshly criticized the decision because it found that the evidence relied on by the Commission was not capable of substantiating this conclusion.

Notwithstanding the fact that the European Court of Justice has now set aside Impala because of a number of identified errors of law, the judgment continues to raise fundamental questions about the standard of proof incumbent on the Commission when dealing with merger cases. The 2004 Sony/BMG decision indeed should be seen in light of the CFI’s consecutive annulment of three prohibition decisions in 2002: Airtours v. Commission, Schneider Electric v. Commission, and Tetra Laval v. Commission. The resoluteness by which the CFI criticized the Commission for its analysis of the evidence and questioned the rigor of its decisions in these judgments was unprecedented. The three judgments, which were delivered over a five-month period, gave rise to a flood of criticism of the Commission’s merger analysis and opened a debate about the economic soundness of its decisions." [GlobalCompetitionPolicy]

Bertelsmann and Sony Judgment: Welcome Clarity for EC Merger Review from the EU’s Highest Court July 28th, 2008
"On July 10, 2008, the European Court of Justice gave judgment setting aside a ruling of the European Court of First Instance in an appeal brought by Impala, a third-party complainant, against the clearance of the SonyBMG joint venture by the European Commission in August 2004. The CFI’s judgment was the first (and so far, the only) time the CFI had overturned an unconditional merger clearance decision under the EC Merger Regulation.

As the ECJ Advocate General noted, the appeal presented the EU’s highest court with an opportunity to develop its case law in the field of merger control, in particular with regard to the extent of investigation and reasoning required of the Commission when it approves a merger transaction. Merger cases are only rarely considered by the ECJ and this judgment, which was delivered by a Grand Chamber of 13 judges, has emphasized a number of important procedural safeguards for parties to mergers, which had been called into question by the CFI’s earlier ruling." [GlobalCompetitionPolicy]

The Court of Justice sets aside the Judgment of the Court of First Instance relating to the Sony BMG Joint Venture July 10th, 2008
"The Court of First Instance committed errors of law in concluding that the Commission’s decision approving the joint venture was vitiated by manifest errors of assessment and was inadequately reasoned.

The following is an excerpt of the ECJ's judgment. To read the entire judgment on the ECJ's website, click on the URL link in the column on the left.

On 19 July 2004, the Commission approved the concentration of the global recorded music businesses of Bertelsmann AG and Sony (with the exception of Sony’s activities in Japan) into three newly-created companies to be operated under the name Sony BMG." [GlobalCompetitionPolicy]

IES Working Paper 4/2008
"One of the most important developments in EC competition policy during 2006 was the Court of First Instance’s (CFI) Impala v. Commission judgment annulling the European Commission’s approval of the merger between the music units of Sony and Bertelsmann. It harshly criticized the Commission’s Decision because it found that the evidence relied on was not capable of substantiating the conclusion. This was the first time that a merger decision was annulled for not meeting the requisite legal standard for authorizing the merger. Consequently, the CFI raised fundamental questions about the standard of proof incumbent on the Commission in its merger review procedures. On July 10, 2008, the European Court of Justice overturned Impala, yet it did not resolve the fundamental question underlying the judicial review of the Sony BMG Decision; does the Commission have the necessary resources and expertise to meet the Community Court’s standard of proof? This paper addresses the wider implications of the Sony BMG saga for the Commission’s future handling of complex merger investigations. It argues that the Commission may have set itself an impossible precedent in the second approval of the merger. While the Commission has made a substantial attempt to meet the high standard of proof imposed by the Community Courts, it is doubtful that it will be able to jump the fence again in a similar fashion under normal procedural circumstances." [IES]

EU Commission: Competition - 30/06/08

Impala appeals Sony BMG decision: Says European Commission made errors
“ European independent music companies trade association Impala has launched another appeal with the European Commission contesting regulators' clearance of the Sony BMG merger. Brussels-based Impala said Monday that it lodged an appeal on Friday with the EC's Court of First Instance in Luxembourg, in which it challenges the EC's unconditional authorization of the recorded music joint-venture.” [AdamArgitWagner]