RBB economists have extensive experience of advising companies involved in proceedings before the EC Commission. In addition, RBB has undertaken studies on behalf of the Commission and also held a series of in-house seminars for DG Competition on the use of economics in competition law.

» Merger Cases
» Article 82
» Article 81

Merger Cases

The economists at RBB are able to offer unparalleled experience in advising companies involved in in-depth Phase II investigations. Collectively, RBB’s economists have advised the merging parties on over 50 such investigations. In addition, we have in the past advised third parties and also advised on numerous investigations concluded at Phase I.
Examples of Phase II cases in which senior economists at RBB have played a prominent role include:

• GE/Instrumentarium: RBB advised GE Medical Systems throughout the EC Commission’s in-depth investigation of the proposed acquisition of Instrumentarium. Despite significant combined post-merger market shares in several product markets, the merger was cleared subject to minor undertakings.
• P&O Princess Cruises (POPC): Advice to POPC in connection with the EC Commission’s inquiry into its proposed merger with Royal Caribbean Cruise Lines. RBB experts produced a series of expert papers on pricing and competition which were submitted to the EC Commission as part of POPC’s evidence.
• Shell/DEA: RBB principals advised the parties on this transaction involving oil products and petrochemicals markets. The petrochemical-related elements of the case were considered and cleared by the Commission after a Phase II investigation, subject to the signing of a minor behavioural undertaking.
• Mitsui/CVRD/Caemi: RBB principals advised the parties on this transaction which involved the iron ore industry. Competition concerns relating to both single firm and collective dominance were satisfactorily addressed. The merger was cleared after a Phase II investigation subject to a minor divestment.
• Enso/Stora: Advice to the parties in this Phase II Merger Regulation inquiry. This case involved overlaps between the parties in consumer packaging board and in particular the issues of buyer power and inter-material substitutability in the liquid packaging sector in which the post-merger share was some 60 per cent. In the event, the Commission cleared the deal with minor conditions.
• Telia/Telenor: Advice to the parties to this merger between the two main telecoms suppliers in (respectively) Sweden and Norway. RBB principals were responsible for submitting expert written reports and presenting at the Oral Hearing. The merger obtained regulatory clearance subject to divestments and regulatory undertakings offered by the parties.
• Hutchison/ECT: Advice to the merging parties involved in the provision of deep sea container port services. The merger was subject to a Phase II investigation under the Merger Regulation, but was withdrawn by the parties before a final decision was made. A revised version of the transaction was later cleared by the Commission.
• Air Liquide/BOC: Advice to the two parties to this merger in its Phase II inquiry in Brussels. RBB principals were responsible for submitting expert written reports and presenting at the Oral Hearing. The merger gained clearance in Europe subject to some divestments.
• Alcan/Pechiney/Alusuisse: Advice to the parties to these two related transactions in this Phase II investigation. RBB principals were involved in presentations at the Oral Hearing and prepared written papers on a variety of topics. One of these transactions, gained conditional clearance; the other was withdrawn prior to a final decision being taken.
• Pirelli/BICCGeneral Cable: RBB principals advised the parties to this transaction which was cleared unconditionally by the Commission during the Phase II process.
• Microsoft/Telewest: RBB principals acting on behalf of Microsoft were responsible for the competitive analysis of the supply of pay-TV set top box software. They were involved in the preparation of an expert economic report and the presentation of its findings at the Oral Hearing in Brussels. The deal was subsequently withdrawn and a revised transaction later gained regulatory clearance from the UK competition authorities (on which the same RBB principals also advised).
• Boeing/Hughes: RBB principals advised the parties in relation to this transaction, which was cleared by the Commission with no formal conditions (though Boeing gave some behavioural undertakings). Unusually, this case was cleared during a Phase II inquiry without the Commission issuing a Statement of Objections.
• Bombardier/AdTranz: This merger involved the acquisition by Bombardier of the train manufacturing business of AdTranz. The merger was cleared with only minor remedies following a Phase II inquiry.
  

In addition to the Phase II merger cases listed above, we have advised on numerous deals at the stage prior to notification and during the initial one-month inquiry period, and indeed the recent trend has been towards greater involvement of economists in these earlier stages of the merger process in Brussels.

We have worked on notification and pre-notification analysis for mergers involving virtually every sector of the economy, including medical devices, branded consumer products, telecommunications, industrial coatings and speciality chemicals, petrochemicals, construction materials, retailing, power generation equipment, airlines, metals and packaging industries.

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Article 82

Economists at RBB have advised on many of the leading recent cases involving allegations of abuse of dominance that have been investigated by the European Commission. Our economists' experience in this area covers a range of alleged abuses by firms claimed to be in a dominant position. Cases include:

• British Airways: Senior economists at RBB advised BA in connection with the EC Commission’s Article 82 investigation into allegations that BA had abused a dominant position in granting rebates to travel agents and in the subsequent appeal to the Court of First Instance.
• IMS Health: economists from RBB advised IMS Health in connection with Article 82 investigations into a variety of business practices involving the pricing of pharmaceutical market research products. The work focused initially on exclusionary pricing concerns and subsequently moved to the essential facility questions relating to copyright licensing of the IMS “brick structure” in Germany.
• Unilever (impulse ice cream): RBB economists have worked for Unilever’s impulse ice cream business on a number of separate competition law investigations into the alleged exclusionary effects of practices such as freezer and outlet exclusivity, and wholesale distribution arrangements and retailer discounts. This work has involved advice for numerous EC jurisdictions, including three successive investigations by the UK authorities and assistance during the European Commission’s investigation (and the subsequent CFI appeal) of the Irish case involving Van den Bergh Foods.
• A major international packaging producer: RBB is currently advising a client involved in formal proceedings under Article 82. The case involves the use of discounting and rebate practices in an industrial product market that are alleged to have exclusionary effects.
• A ferry port operator: RBB economists were asked to analyse essential facilities and refusal to supply for a client involved in a domestic litigation case in which a plaintiff claimed damages for our client’s refusal to supply access to its ferry port to competing operators. The analysis assessed the claim that the port was an essential facility by reference to the relevant economic theory and the market evidence, demonstrating that the plaintiff had clear and viable options to make alternative arrangements. The case was settled prior to trial.
• An international biotech company: RBB advised a major biotech company in connection with EC Commission investigations under Article 82 into allegations that patent licensing conditions and fees imposed by our client amounted to exclusionary and/or excessive pricing. To date, the Commission has declined to instigate formal proceedings.

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Article 81

Economists at RBB have advised on many Article 81 cases involving both horizontal and vertical issues. Cases include:

• Arjo Wiggins Appleton (AWA): RBB senior economists advised AWA in relation to cartel investigations undertaken by the EC Commission. A report assessing the competitive parameters in the carbonless paper industry was submitted as part of the proceedings and a summary of that report was presented at an Oral Hearing. RBB also advised AWA in their appeal to the Court of First Instance.
• BPB: RBB senior economists advised BPB in relation to cartel investigations undertaken by the EC Commission. A report assessing the competitive parameters in the plasterboard industry and the likely impact on competition from the agreements under investigation was submitted as part of the proceedings.
• Ajinimoto: RBB advised Ajinomoto in relation to cartel investigations undertaken by the EC Commission. A report assessing the evidence on the competitive impact of the agreements in the nucleotides (food flavour enhancers) industry under investigation was submitted on behalf of the client.
• UEFA Champions League: RBB senior economists advised UEFA in relation to an investigation undertaken by the EC Commission into the competitive effects of the selling arrangements for the television rights to the UEFA Champions League.
• Heineken: RBB senior economists advised Heineken in relation to vertical agreements between Heineken and retail outlets. Under these agreements, Heineken provided financial and other support and retailers agreed to only stock pilsner supplied by Heineken. An economic report assessing the competitive consequences of these agreements and their rationale was presented. These agreements were held not to fall within Article 81(1).

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Contact

For further information on RBB Economics and its EC experience, please contact:

RBB Economics Brussels:
brussels@rbbecon.com

or +32 2 792 0000

RBB Economics London:
london@rbbecon.com

or +44 20 7421 2410