Brief 64: Surviving the broad axe: The UK class action regime is alive and kicking, but what can the Supreme Court’s judgment in Merricks/Mastercard tell us about the role of economics in class certifications going forward? 28.04.21
On the 11th December 2020, the UK Supreme Court (“SC”) handed down its judgment in the case between Walter Hugh Merricks, CBE (“Merricks”) and Mastercard Incorporated (“Mastercard”).1 The judgment concerns Merricks’ Collective Proceedings Order (“CPO”) application to pursue a class action for follow-on damages against Mastercard for £14 billion (after interest), on behalf of 46.2 million people.2 The application was originally rejected by the UK Competition Appeal Tribunal (“CAT”) in 2017, before the CAT’s ruling was overturned on appeal by the Court of Appeal (“CoA”) in 2019.3 Mastercard then appealed the CoA’s decision before the SC, but was unsuccessful, with the SC sending the case back to the CAT for re-consideration.
This brief expands on this and other important economic considerations that arise from the SC judgment, including how failing to interrogate a claimant’s proposed damages estimation methodology in sufficient detail is liable to cause serious issues at trial.
RBB Brief 63: Digging in the Scrap Heap! A new theory of adverse buyer power 15.03.21
The Aurubis / Metallo merger was approved unconditionally by the European Commission after an in-depth investigation, which included the sending of a Statement of Objections to the Parties and an oral hearing. The Commission was concerned that this merger, by combining the two largest purchasers of copper scrap in the EEA, would give rise to significant buyer power. Whilst increased buyer power usually benefits consumers, as lower input costs often translate into reduced product prices, in some cases imposing lower prices on suppliers could result in a significant impediment of effective competition (“SIEC”).
In this Brief, we offer an economic perspective on the Commission’s approach to investigate competition concerns stemming from increased buyer power that results
from horizontal mergers, with particular focus on a new theory of harm.
Brief 62: Economic Lessons from the EU General Court’s Three/O2 Judgment 03.12.20
In the EU, dominance used to be a necessary but, importantly, not a sufficient, condition for finding that a horizontal merger would give rise to competition concerns. But since 2004, EU merger control allows for the possibility of anticompetitive mergers that do not create or enhance a dominant position. This raises the important question: if dominance is no longer a necessary condition, how should we determine whether a horizontal merger is pro-competitive or anti-competitive?
That question was addressed in the recent judgment of the EU General Court, in which the Court annulled the Commission’s decision to prohibit the merger between Three and O2, two of the four main providers of mobile telephony services in the United Kingdom. That judgment provides an important commentary on the Commission’s economic approach to assessing horizontal mergers that goes beyond the specifics of this particular case. This Brief discusses some noteworthy points to emerge from the judgment.
Brief 61: Lost in the post: where is the as-efficient competitor test after 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
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.
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.
Brief 58: Beyond internal documents: the Commission’s recent conglomerate effects practice 10.12.18
The European Commission has shown an increasing reliance on internal documents in its recent merger practice. However, whilst findings from internal documents can be informative, the economic assessment of the market evidence available remains crucial to test any such findings and put them in context.
The importance of an economic assessment has been reflected in both Essilor/Luxottica and Qualcomm/NXP, two recent conglomerate merger cases. This Brief discusses the Commission’s review of these two cases, drawing some general conclusions on its current approach to conglomerate effects.
Brief 57: Mamma Mia! Mis-using Abba Lerner’s index to measure market power 26.11.18
In August 2018, the Federal Government released the Final Report of the Productivity Commission’s (PC) inquiry into competition in Australia’s financial system.
One of the main findings of that inquiry was that price competition in the banking system was limited and reinforced by opaque pricing and obfuscation. The basis for this finding was that all banks – large and small in Australia – exhibited pricing power and were able to use that power to keep prices above marginal costs.
That important finding was alleged to be supported by analysis undertaken by the PC using the Lerner index, which it claimed showed that all banks in Australia had market power, but that the major banks were the “dominant force in the market” and, as a result, were able to charge higher premiums above their marginal costs compared with other institutions.
This Brief explains why the use of the Lerner index to determine whether a firm has market power is flawed and casts doubt on the PC’s findings that all banks in Australia possess market power and moreover, that the major banks, in particular, have been able to set prices above competitive levels to the detriment of consumers.
Brief 56: Pfizer/Flynn vs the CMA: Misdiagnosis of excessive pricing 23.07.18
On 07 June 2018, the UK Competition Appeals Tribunal (‘CAT’) set aside the Competition and Markets Authority (‘CMA’) Decision regarding the alleged excessive pricing of phenytoin sodium (an anti-epileptic drug) by two pharmaceutical companies – Pfizer and Flynn.
While the CAT supported the CMA’s findings in relation to market definition and dominance, it was critical of the CMA’s assessment of the alleged abusive conduct. Specifically, the CAT found that the CMA “did not correctly apply the legal test for finding that prices were unfair; it did not appropriately consider what was the right economic value for the product at issue; and it did not take sufficient account of the situation of other, comparable, products, in particular of the phenytoin sodium tablet”.
In short, the CAT found that the CMA had failed to conduct a thorough economic assessment of the circumstances in which prices can be held to be excessive and identified a range of factors that need to be considered in order to robustly establish a finding of excessive pricing. The CAT Judgment therefore serves as a welcome reminder of the inherent difficulties that arise in determining whether or not a given price level can be meaningfully determined to be excessive and, perhaps more importantly, that competition authorities should not ignore crucial economic evidence in that assessment.
Brief 55: Automatic Harm to Competition? Pricing algorithms and coordination 12.02.18
In a recent speech, EU Commissioner Vestager expressed the following concerns regarding the use of pricing algorithms.
“ I think we need to make it very clear that companies can’t escape responsibility for collusion by hiding behind a computer program.”
Other competition agencies have echoed similar concerns for the risks that pricing algorithms pose for collusion. The topic has also featured in a recent OECD roundtable and in a number of academic papers. This Brief assesses the impact of different categories of pricing algorithms, identifies their links with coordination concerns, and evaluates some possible competition law enforcement responses. Pricing algorithms do raise some interesting issues, but the worst case scenarios for collusion have been overplayed, and some of the calls for increased intervention reveal a worrying gap in the understanding of the economics of oligopolistic markets.
Brief 54: An innovative leap into the theoretical abyss: Dow/DuPont and the Commission’s novel theory of harm 05.07.17
In March 2017, the European Commission approved the proposed merger between chemical companies Dow and DuPont, subject to undertakings. The Commission applied an innovation theory of harm that is based on a much broader and more speculative concern than in other recent mergers (e.g. Pfizer/Hospira); namely, that the parties would find it profitable to reduce overall R&D investments post-merger causing a reduction in the number of innovative pesticide products in the future. This Brief explains why this theory of harm marks a departure from previous “innovation” cases. It also responds to the recently published paper by Chief Economist Tommaso Valletti and his colleagues, which claims, on the basis of a theoretical model, that horizontal mergers can be expected to reduce innovation incentives as a result of a standard unilateral effect.
Brief 53: Passing judgment on passing-on 29.03.17
The harm suffered by a firm as a result of a competition law infringement that increases its purchase costs may be reduced if it can pass on some or all of this overcharge to its own customers. At the same time, such passing-on will lead to harm, and provide the basis for claims, further down the supply chain. In this Brief we offer an economic perspective on passing-on, highlighting in particular some of the issues raised by the UK Competition Appeal Tribunal’s Judgment on the damages claim brought by supermarket retailer Sainsbury’s against payment card scheme operator MasterCard. In doing so, we have drawn on insight and analysis from the Study on the Passing-On of Overcharges recently co-authored by RBB for the European Commission.
Brief 52: Estimating post-merger price effects in bidding markets: lessons from GE/Alstom 21.06.16
In September 2015, the European Commission cleared General Electric’s proposed acquisition of Alstom’s power generation business, subject to undertakings, after a Phase II investigation. The transaction reduced the number of major suppliers of heavy duty gas turbines from four to three. As part of its assessment, the Commission estimated the likely price impact of the proposed transaction, taking into account the bidding nature of competition.
In this Brief, we examine the intuition behind the techniques used by the Commission, which we expect it to employ when evaluating future transactions involving bidding markets. Whilst less simplistic, these techniques suffer from similar drawbacks to the price pressure tests which the Commission and other authorities around the world are increasingly employing.
Brief 51: Better together? Commission adds a new tune to its repertoire on music rights mergers 22.03.16
In October 2015, the European Commission approved a joint venture between three of the largest music publishing collecting societies in Europe: PRSfM, GEMA and STIM. As in other recent music industry mergers, the Commission investigated whether the combination of the parties’ repertoires would enhance their negotiating power when licensing digital services. However, in marked contrast to previous decisions, the Commission concluded that larger repertoires are not able to command higher royalties. In this Brief, we consider the Commission’s assessment and implications for other cases involving combinations of product/service portfolios, such as patent pools and airline alliances.
Brief 50: The CMA Energy Market Review: a remedy without a cause? 09.10.15
On 7 July 2015, the UK’s Competition and Markets Authority published the provisional findings of a market investigation into the UK energy market. It found an Adverse Effect on Competition (AEC) in the way in which energy companies retail gas and electricity to UK households. In this Brief we examine the CMA’s provisional findings and explore some of the public policy issues raised by its proposed remedies. Having, notably, spent much of its report cataloguing the failures of energy regulator Ofgem’s efforts to micro-regulate the energy market, the CMA’s apparent confidence in its ability to find and implement prescriptive pricing remedies is striking.
Brief 49: Refining its Tool Kit – The ACCC’s decision to authorise RPM in the Tooltechnic case 24.02.15
In December 2014, Australia’s Competition and Consumer Commission (ACCC) granted conditional authorisation to Tooltechnic Systems (Australia) Pty Ltd to engage in minimum resale price maintenance in marketing its premium brand of power tools.
Brief 49 considers the analysis undertaken by the ACCC and explores the implications for other firms that might seek to emulate Tooltechnic’s attempts to gain authorisation for RPM.
Brief 48: The price effect of cost changes: passing through and here to stay 18.12.14
Cost pass through arises when a firm changes the prices of its products or services in response to a change in its costs. This Brief highlights some of the
key theoretical and empirical insights on pass-through that are relevant to competition policy. In doing so, it addresses a number of common pass-through fallacies.
Brief 47: Drink deriving: estimating substitution patterns 01.07.14
The UK Office of Fair Trading (OFT) and Competition Commission (CC), since 1 April 2014 combined to form the Competition and Markets Authority (CMA), have both recently
analysed high profile mergers involving branded drinks producers using demand
estimation. Specifically, both authorities employed the Almost Ideal Demand System (or
AIDS) framework to assess quantitatively whether drinks brands supplied by the merging
parties are particularly close competitors and so whether these transactions were likely to
result in a significant lessening of competition (SLC).
Brief 46: Turning Round a Supertanker: the OFT’s abuse of dominance case against CH Jones 11.03.14
In October 2013 the OFT decided to close an abuse of dominance investigation, launched in April 2010, against CH Jones, a leading provider of bunker fuel services to HGV fleets. This outcome marked a significant reversal from a statement of objections (“SO”) issued in February 2011, in which the OFT alleged that CH Jones had abused a dominant position by engaging in an anticompetitive attempt to exclude a rival.
Brief 45: Gold Circle/Kenilworth Racing, a case of “horizontal” complements 04.11.13
Complementarity is a dynamic that the European Commission has wrestled with in many
high profile merger investigations such as GE/Honeywell, EdF/British Energy, TomTom/
TeleAtlas, Lufthansa/SN Airholdings, and Universal/EMI. It affects sports rights, standards
essential patents, media and transport, it is central to some of the more complex vertical
foreclosure and abuse theories of anti-competitive harm, and it is a primary motivation for
many pro-competitive joint ventures and “horizontal” agreements. In October 2012, the
Competition Tribunal of South Africa (“Tribunal”) examined complementarities in detail in
the course of a three week oral hearing, following which it overturned an earlier decision
by the Competition Commission (“Commission”) to prohibit two linked mergers in the
South African horseracing industry, approving the transactions subject to a minor
Brief 44: Where Economists Roam: Syniverse/MACH and contestability 26.09.13
On 29 May 2013, following a full Phase 2 investigation, the European Commission (the
“Commission”) announced its decision to approve the proposed acquisition of MACH by Syniverse, subject to conditions.1 In this Brief we explore how the economic theory of
contestable markets and the threat of self-supply by customers in!uenced the Commission to be more tolerant of high levels of market concentration, and we draw out some practical implications for the design of remedies in such cases.
Brief 43: Creditworthy? The OFT Review of Personal Current Accounts 02.07.13
On 25 January 2013 the OFT issued a Review of the UK personal current account (PCA)
market.1 The Review concluded that “longstanding competition concerns” remain in the
PCA market, but opted to defer the threat of a full market investigation for two years.
This Brief examines the economic rationale for the UK regulators’ continued
preoccupation with intervention in the PCA sector.
Brief 42: Entering Uncharted Territory: the Commission’s thinking on territorial supply constraints 29.05.13
On 31 January 2013, the European Commission (DG Internal Market) published a Green Paper on unfair trading practices in the business-to-business food and non-food supply chain in Europe.1 Following a number of inquiries at national level including the Groceries investigation in the UK,2 the Green Paper deals with a variety of practices, for example retroactive contract changes, that are considered to “grossly deviate from good
Brief 41: Do efficiencies ever deliver? Lessons from the UPS/TNT case 18.03.13
On 30 January 2013, the European Commission announced its decision to prohibit the
proposed acquisition of TNT Express (“TNT”) by UPS. The transaction would have reduced the number of major players in the global express delivery business, which comprises DHL, UPS, TNT and FedEx, from four to three. After a Phase 2 investigation, the Commission concluded that significant anticompetitive effects would be likely to occur in most European countries, despite the fact that DHL would have remained the largest supplier in many of those countries post-merger.
Brief 40: Another Fine Mess: OFT proposals pave the way to effects-based analysis of competition law penalties 23.11.12
In September 2012 the OFT published new guidelines on penalties for competition law infringements.1 The guidelines contain two main changes. First, they raise the starting point for calculating fines for “serious infringements” to 30% of relevant turnover (up from 10% in the previous guidelines). Second, they include a commitment to take “a step back” before applying mechanistic turnover-based rules for calculating fines, and to place greater emphasis on the need for proportionality. In this Brief we comment on the conflicting economic and policy issues raised by these changes.
Brief 39: Roll on demand estimation: the EC’s empirical analysis in Unilever/Sara Lee 24.05.12
The European Commission’s decision on Unilever/Sara Lee represents an important step in the use of merger simulations in assessing mergers, placing greater prominence on such analysis than in previous cases where this approach has been used.
Estimating price effects from a merger sounds like a panacea for merger control: in most merger cases, this is the central question that merger analysis seeks to answer.
Brief 38: The OFT Tobacco Investigation: a case of smoke without fire 18.01.12
On 12 December 2011, after halting proceedings midway through the Appeal Hearings, the UK Competition Appeals Tribunal (‘CAT’) issued a Judgment that quashed the OFT’s Competition Act Decision against trading agreements in the tobacco sector. In the process, it annulled the record fines that had been imposed against Imperial Tobacco and the retailers that were appealing the Decision. In this Brief we assess the factors that led the OFT’s case to collapse and consider the wider implications for the assessment of vertical restraints
Brief 37: Pass-on in Damages Assessment: defence or offence? 09.09.11
When assessing the damage suffered by customers affected by a competition law infringement such as a cartel, it may be relevant to consider the extent to which these downstream firms have passed on some or all of any price increase caused by the infringement to their own customers. Since passing on a price increase will always reduce the damage, reference is often made to the “passing-on defence”. …
Brief 36: Road-testing UPP: the Zipcar/Streetcar merger 03.03.11
In December 2010 the UK Competition Commission (CC) cleared the acquisition of Streetcar, the largest provider of car club services in the UK, by Zipcar, a rival car club with operations in London and across North America.1 The post merger firm would account for some 80% of UK car club vehicles. The CC analysed the parties’ incentives to raise prices using a formulation of the Upward Pricing Pressure (UPP) test. UPP features prominently in the US horizontal merger guidelines …
Brief 35: Keeping Track of Static and Dynamic Incentives: The Australian approach to essential facilities 28.10.10
This Brief comments on the recent Decision of the Australian Competition Tribunal (‘the Tribunal’) in the Fortescue Metals Group (‘FMG’) case.1 FMG is an iron ore mining operator in the Pilbara region of Western Australia. The case concerned separate applications by FMG under Part IIIA of the Trade Practices Act to obtain access to four railway lines: the Mount Newman and Goldsworthy lines owned by BHP Billiton; and the Hamersley and Robe lines owned by Rio Tinto, in order to transport iron ore from various locations in Pilbara to the sea ports that would take the iron ore to its export markets. BHP Billiton and Rio Tinto (‘the owners’) opposed the applications for access, choosing to continue to operate these lines as part of their own integrated iron ore businesses.
Brief 34: The EU Commission’s Proposals for Regulating New Car Sales: Article 101 meets Economics 1.01 30.09.08
In December 2009, the EU Commission published its proposals for the new European regime to regulate vertical restraints in the motor vehicles sector under Article 101 (formerly Article 81).1 The plans involve the continuation of the old sector-specific Motor Vehicles Block Exemption Regulation (“MVBER”) for new car sales until 2013 after which time the general Block Exemption Regulation (“BER”) for vertical agreements will apply and the sector-specific rules will cease to exist.2
Brief 33: A matter of ups and downs: the competitive assessment of fuel price dynamics 30.09.08
Whenever fuel prices increase markedly, accusations of anti-competitive conduct are almost sure to follow. Indeed, when automotive fuel prices scaled new highs during 2008, this was greeted with waves of protest around the world. Portugal was no exception, with the Automobile Club of Portugal (“the ACP”) declaring itself ?convinced? as to the anti-competitive nature of the price movements. Significantly, the Portuguese Autoridade da Concorrència (“the Authority”) responded by initiating an in-depth investigation of the sector. In turn, this prompted the ACP to follow up on its claims with a legal opinion that set out its concerns in more formal terms.
Brief 32: Nokia/NAVTEQ – navigating the non-horizontal merger guidelines 30.09.08
EThe Nokia/NAVTEQ and TomTom/Tele Atlas vertical mergers were considered by the European Commission at the same time as the publication of the Commission’s new Guidelines on non-horizontal mergers (the Guidelines 1), providing an early test of the application of the new regime. The Commission’s main concern was the likelihood of total and partial vertical input foreclosure. Eventually both mergers were cleared without remedies following phase II investigations.
Brief 31: Catch-22: The role for economics in the assessment of information exchanges under Article 81 30.09.08
Economic analysis has a clearly established role in the assessment of alleged infringements of Article 81 EC. It is central, for example, in establishing whether a vertical agreement results in foreclosure, or in estimating the damage suffered by a customer of a cartel. However, economics has typically played a less prominent role in establishing whether a cartel infringement has occurred. But that situation is now changing, spurred by the increased tendency of the European authorities to pursue Article 81 cases against horizontal agreements, such as information exchanges, which fall short of the classic cartel infringement.
This Brief explores the role that economics can play in cases where information sharing is alleged to infringe Article 81. We comment in particular on the “Catch-22″ that now stands in the way of enforcement officials who seek to avoid economic analysis by claiming that a restriction is anti-competitive “by object”.
Brief 30: When One is Enough? – Effects-based and efﬁciencies analyses in practice 26.09.08
After a Phase II inquiry, the Dutch competition authority NMa cleared on 28 August 2008 the acquisition of Gouden Gids, a Dutch on-line and print directory owned by Truvo, by European Directories, publisher of rival on-line and print directory De Telefoongids.1 The transaction led to the integration of the directory activities of De Telefoongids and Gouden Gids. De Telefoongids and Gouden Gids were the only two national, door-to-door distributed directories in the Netherlands…
Brief 29: Crime and Punishment (and Deterrence) – the role of private cartel damages actions 21.09.08
Private actions for cartel damages have become an increasingly common feature in Europe. This Brief discusses, in light of the EC Commission’s White Paper on private
actions, the role that damages claims can play in protecting competition and consumer interests in horizontal cartel cases.…
Brief 28: Sending the Right Signal 15.09.08
In September 2008 the Competition Commission (CC) accepted price control undertakings following the merger of Arqiva and National Grid Wireless (NGW), which had been cleared subject to undertakings by the CC in March 2008. The merger was cleared even though it was a merger to monopoly in the supply to broadcasters of managed transmission services (MTS). Whilst such findings would normally result in prohibition or a structural remedy, the CC accepted a package of behavioural remedies addressing the effects of the substantial lessening of competition (SLC) rather than the SLC per se. This was motivated.…
Brief 27: Grand Theft Antitrust: Lessons from the GAME/Gamestation transaction 07.09.08
In January 2008, the UK Competition Commission cleared the completed acquisition of Gamestation Limited (Gamestation) by GAME Group PLC (GAME), creating the largest retailer of video games in the UK through the combination of the only two national specialist retailers.1 The merger was approved unconditionally by the Commission, albeit with two of the panel members expressing a dissenting opinion. This Brief examines the source of the differences of opinion amongst the panel members and in so doing highlights two important considerations for the practical assessment of horizontal mergers, …
Brief 26: Google/DoubleClick: The search for a theory of harm 02.06.08
In March 2008, the European Commission cleared Google’s proposed acquisition of DoubleClick, a leading online advertising technology company. Despite the absence of any horizontal overlap between the parties, the merger was the subject of a large amount of public attention (focused on issues related to privacy as well as to competition) and faced significant opposition from third party complainants.
Brief 25: Two Sides to Every Story? Lessons from the Travelport/Worldspan EC case 27.05.08
For a market to be described in economic terms as “two-sided” two conditions must hold. First, the product at the centre of the analysis is a “platform” that allows or facilitates the interaction of two distinct groups of customers. Second, the benefit that customers in one group derive from the interaction is larger the greater the number of customers on the other side of the platform (the platform creates indirect network externalities). Examples of markets with two-sided features include the media…
Brief 24: The CC’s Northern Ireland Banking Market Investigation – an absence of effective regulation? 23.12.07
The UK Enterprise Act introduced the market investigation, a new instrument that allows the Competition Commission (CC) to analyse markets in which there is “an absence of effective competition” and, where applicable, to implement remedies. The market investigation powers have been trumpeted as a device that will enable the competition authorities to fix problems and benefit consumers in areas that could not easily be reached by the mainstream competition laws against abuse of dominance and restrictive agreements.
This Brief takes a critical look at the CC’s market investigation into banking in Northern Ireland. We assess whether…
Brief 23: Svitzer/Adsteam: Assessing unilateral effects when monopolists merge 17.09.07
In February 2007, the UK Competition Commission (hereafter, the “CC”) cleared the acquisition of Adsteam Marine Ltd. (“Adsteam”) by Svitzer-Wijsmuller A/S (“Svitzer”). Each of the two parties was the sole supplier of harbour towage services in a number of UK ports and after the merger the new entity would have accounted for around 90% of such services in the UK. The CC concluded that no substantial lessening of competition would arise post-merger except in the port of Liverpool, the only UK port …
Brief 22: (Fore)closing the Gap: The Commission’s Draft Non-Horizontal Merger Guidelines 12.07.07
Almost exactly 3 years after issuing its horizontal merger guidelines, the European Commission published draft guidelines on the assessment of non-horizontal mergers (i.e. vertical mergers and conglomerate mergers). As the draft guidelines acknowledge, by virtue of bringing together complementary rather than substitutable products, nonhorizontal mergers – whether vertical or conglomerate – give rise to substantial scope for cost and price efficiencies and are …
Brief 21: Tomra: rolling back form-based analysis of rebates? 04.02.07
The Tomra Article 82 Decision is the first to have been issued since DG COMP’s much-debated Discussion Paper on Article 82 was published in December 2005. A recent article in the DG COMP Newsletter by members of the Commission case team states that the decision marks an important step towards the envisaged reform of Article 82 enforcement. In this Brief we consider the Commission’s approach to Tomra’s rollback rebates and assess the implications for the brave new world of effects-based analysis.
Brief 20: Making market deﬁnition work: the case of telecoms (de)regulation 30.09.06
Under the European regulatory framework governing electronic communications established in July 2003 national regulatory authorities (NRAs) can impose regulatory obligations on telecoms operators ‘only where the [relevant] markets are considered not to be effectively competitive as a result of such undertakings being in a position [of significant market power (SMP)] equivalent to dominance within the meaning of Article 82 of the EC Treaty’. In other words, the hurdles that must be cleared before regulatory intervention can occur are defined explicitly to meet general competition law standards …
Brief 19: Lost in Translation: The use and abuse of diversion ratios in unilateral effects analysis 25.06.06
It is widely recognised that diversion ratios can provide a useful tool when analysing the unilateral effects of a merger. […] In principle, a reliable diversion ratio approach dispenses with any need to measure the relevant market because it measures directly the extent of the competitive constraints that disappear due to the merger. However, there are many pitfalls in using diversion ratios to make predictions of the impact of a merger on competition.
Brief 18: Turning the Tables: Why Vertical and Conglomerate Mergers are Different 24.03.06
It is widely recognised that diversion ratios can provide a useful tool when analysing the unilateral effects of a merger. […] In principle, a reliable diversion ratio approach dispenses with any need to measure the relevant market because it measures directly the extent of the competitive constraints that disappear due to the merger. However, there are many pitfalls in using diversion ratios to make predictions of the impact of a merger on competition. …
Brief 17: The Need for Reality Checks: An example from the Netherlands 21.08.05
On 31 May 2005, the Court of Rotterdam in the Netherlands annulled a decision by the NMa, the Dutch competition authority, concerning the proposed merger between electricity companies Nuon and Reliant1 After a detailed inquiry, the NMa had cleared the merger conditional on a structural remedy whereby the merged entity was required to auction a part of its electricity generation capacity to third parties for a period of five years…
Brief 16: Tying and bundling – cause for complaint? 15.01.05
This Brief explores some economic and policy issues raised by tying and bundling in the context of abuse of dominance investigations, focusing in particular on the role that third party complaints play in the analysis. Interest in the treatment of this subject under European competition law has recently been renewed by the Commission’s decision in the Article 82 case against Microsoft.
Brief 15: Art or Science? Assessing efficiencies under the Commission’s Article 81(3) Notice 23.07.04
This Brief discusses the EC Commission Notice on Article 81(3) exemptions. The Notice describes a framework for the economic analysis of how an agreement that is held to restrict competition may nevertheless be lawful because it meets the four efficiency defence criteria of Article 81(3). The Notice seeks to follow the approach taken on efficiencies in horizontal mergers, but as we explain in the Brief, there are several difficulties in extending this framework from mergers to the assessment of vertical and horizontal agreements.
Brief 14: Assessing Unilateral Effects in Practice: Lessons from GE/Instrumentarium 21.05.04
This Brief analyses the Commission’s decision to clear GE’s acquisition of Instrumentarium, the medical equipment supplier, subject to undertakings. RBB acted as economic experts to GE on this merger. The case is interesting on a number of levels. It is the first EC Merger Regulation decision to contain a detailed and explicit analysis of unilateral effects, reflecting the framework laid down in the EC’s horizontal merger guidelines. The decision also reveals the very substantial influence that the Chief Economist’s office is having on the greater use of quantitative methods in merger analysis.
Brief 13: The special responsibility of dominant firms under Article 82: don’t compete on price 15.02.04
In the last six months the CFI has issued two long-awaited judgments on dominant firm pricing behaviour. In both cases – Michelin II and British Airways (BA) – the CFI has upheld
the Commission’s earlier finding that these firms had pursued price and rebate schemes that amounted to an abuse of a dominant position.
Brief 12: The Emperor’s New Clothes? – the role of merger simulation models 04.01.04
The Commission’s new Notice on Horizontal Mergers highlights the importance of unilateral effects analysis in evaluating mergers in differentiated product markets. In industries where the products supplied by firms are differentiated, market shares can either over- or understate the significance of the competitive constraint that each party poses on the other, and a more sophisticated analysis is needed. Reflecting that need, there has been a recent upsurge in interest in the potential role of merger simulation models in EC merger control. Proponents of these models often claim that they result in a robust prediction of the ultimate impact of differentiated product mergers – that they allow the analysis to go “straight to the answer”, rather than becoming distracted by unproductive debates on market definition and purely structural factors.
This Brief takes a critical look at simulation models. Can they deliver on such promises? Or is their contribution a more limited addition to the range of analytical techniques that can usefully be applied in merger assessment?
Brief 11: Goldilocks and the three bears – the story of market definition and the cruise mergers 30.10.03
It is generally accepted that market shares alone provide an incomplete basis for competitive assessment, especially in differentiated product settings where they can potentially either understate or overstate the likely competitive impact of a merger. Moreover, any assessment of the likely impact of a merger must also include consideration of supply-side as well as demand-side responses, since these can provide just as important a source of competitive constraint on attempts to raise price post-merger.
This Brief illustrates these points with reference to the investigations undertaken by three separate competition authorities into mergers in the cruise industry.
Brief 10: The Genzyme Case and the OFT’s Margin Squeeze Muddle 27.07.03
In March 2003 the OFT decided that Genzyme had infringed the UK Competition Act’s Chapter II prohibition (the UK analogue of EC Article 82) by bundling its product with associated home care services, and by imposing a margin squeeze on competing firms. Based on the case law and the OFT’s published guidelines, this decision might appear at first glance to be a straightforward case of dominant firm abuse. But a closer analysis of the economic issues raises some interesting and as yet unanswered questions about the nature of dominant firms’ obligations under competition law.
Brief 09: Fine in Theory 23.06.03
In light of the increasing reliance on ever more sophisticated theories of anti-competitive effects in all areas of competition law, this Brief discusses how the relevance of economic theories should be evaluated in the practical application of competition rules. Assessing the relevance of a theory to the actual operation of a market is critical because with the right assumptions it is possible to build a theoretical model to support almost any view of the world. It is therefore important that any theory of competitive harm is carefully assessed and that its underlying assumptions and predictions are consistent with observed industry behaviour. By way of illustration, we explore how the NMa recently considered and rejected a theoretical model of the operation of the market for motor fuel retailing in the Netherlands.
Brief 08: Ringing the changes – The New Approach to Telecommunications Regulation 14.04.03
In July this year a new European regime for the regulation of electronic communications will come into force. It will harmonise the framework to be used for telecommunications regulation throughout the EC, whilst leaving national regulatory authorities (NRAs) free to deal with the different domestic circumstances each faces.
This Brief considers the new regime and discusses the issues and factors that NRAs and regulated firms will need to consider in shaping how the discretion of the NRAs is to be used within the new framework.
Brief 07: Full Marks? The Draft EC Notice on the Appraisal of Horizontal Mergers 27.11.02
In December 2002, the EC Commission announced a series of reforms designed to improve the assessment of mergers. As far as horizontal mergers are concerned, substantial changes are largely covered in the Draft Notice on the Appraisal of Horizontal Mergersthat accompanied the reforms. In Brief 7 we assess the Draft Notice and its implications.
Brief 06: Switching Costs and Merger Assessment – don’t move the goalposts 15.11.02
RBB Brief 6 analyses the effect that switching costs have on the appraisal of mergers:. Too often, the existence of switching costs is cited as a reason for prohibiting mergers at lower levels of market concentration than would normally be justified. The real impact of switching costs, however, is rather more complex, and can lead to surprising results…
Brief 05: Excess Pricing in the Napp Chapter II Case – how much is too much? 07.09.02
Brief 04: Pro-Competitive Exclusive Supply Agreements: How Refreshing! 16.08.02
Brief 03: The Treatment of Captive Sales in Market Definition – Rules or Reason? 10.07.02
Brief 02: Airtours/First Choice: CFI Holds Commission to Account 05.06.02