RBB publications

Brief 61: The AEC test Royal Mail v Ofcom 28.05.20

After the Intel judgment, is passing the as-efficient competitor test (AECT) sufficient to establish the absence of an exclusionary pricing abuse? This was a critical question put before the UK Competition Appeal Tribunal (CAT) by Royal Mail, a near monopoly supplier of “final mile” delivery services for bulk mail, appealing a decision that its wholesale delivery terms were exclusionary.1 The CAT’s answer was an emphatic no. It found that the AECT is not required as a matter of law.2 It also claimed that there were no compelling reasons of economic principle that mandated the use of the test, and said that the test is of very limited or no use as a guide to compliance.3

This Brief discusses substantive aspects of the case and their relevance for wider consideration of the applicability of the AECT

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Brief 60: Sainsbury’s/Asda and the CMA’s GUPPI decision rule: On the money or basket case? 16.10.19

In April 2019, the UK’s Competition and Markets Authority (CMA) issued one of its highest-profile decisions in recent years, prohibiting the proposed merger between the supermarket chains Sainsbury’s and Asda.1 In so doing, it relied solely on Gross Upward Pricing Pressure Index (GUPPI) calculations to determine if local overlaps in the parties’ grocery stores were likely to result in a substantial lessening of competition (SLC).

This Brief considers the wider implications of the CMA’s mechanical use of GUPPI values as a decision rule in this case.

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Brief 59: A questions of balance: comments on a proposed new test for UK merger control 01.05.19

Digital markets are under intense scrutiny. A notable concern is that competition authorities have insufficient scope to block acquisitions of innovative potential entrants that might otherwise have become a disruptive competitive influence and a spur for increased innovation in digital markets. In one response, a recent report prepared for the UK Government by a digital competition expert panel headed by Professor Jason Furman has proposed significant reforms to the UK merger regime. These include a recommendation that the “balance of probabilities” test of harm currently applied by the UK Competition and Markets Authority (“CMA”) is replaced by a new test based on the “balance of harms”. Similar issues are also considered in a recent report commissioned by DG Competition: “Competition Policy for the Digital Era” by Jacques Crémer, Yves-Alexandre de Montjoye and Heike Schweitzer.

This latest RBB Brief discusses the merits of introducing a balance of harms test into merger control.

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The Joint OFT / CC Commentary on Retail Mergers: FAQs 14.11.11

RBB Economics, The Joint OFT / CC Commentary on Retail Mergers: FAQs, November 2011.

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Comments on proposed changes to EC Commission Guidelines on Vertical Restraints 14.09.09

RBB Economics, Comments on proposed changes to EC Commission Guidelines on Vertical Restraints, September 2009.

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OFT/CC Joint Merger Assessment Guidelines: Response to Invitation to Comment 14.08.09

RBB Economics, OFT/CC Joint Merger Assessment Guidelines: Response to Invitation to Comment, August 2009.

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The Competitive Effects of Buyer Groups, Economic Discussion Paper, A Report prepared for the Office of Fair Trading 14.01.07

The Competitive Effects of Buyer Groups, Economic Discussion Paper, A Report prepared for the Office of Fair Trading by RBB Economics, Adrian Majumdar, Leslie Neubecker, Ugur Akgun, Markus Baldauf, January 2007.

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The Response of RBB Economics to the DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses 14.03.06

RBB Economics, The Response of RBB Economics to the DG Competition Discussion Paper on the Application of Article 82 of the Treaty to Exclusionary Abuses, March 2006.

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