Frequently Asked Questions in Competition Matters

Our experts address questions in merger and acquisition cases that may include:

• What are the relevant product and geographic markets?
• Does the transaction result in pro-competitive efficiencies?
• What would happen absent the merger (i.e. what is the relevant ‘counterfactual’)?
• What is the effect of the merger or acquisition on incentives:
  • to raise prices?
  • to reduce choice?
  • to invest in innovation?
  • to foreclose competitors?
• Will the merger result in an increased likelihood of ‘coordinated effects’?

Our experts review questions in cartel and horizontal agreement disputes, including:

• What is the appropriate definition of the relevant market?
• Does the economic context of an agreement suggest it has an anti-competitive object?
• Does the agreement have restrictive effects on competition?
  • Do the parties to the agreement have market power? Do they have high market shares? Are they close competitors? Do customers have limited possibilities of switching suppliers? Are competitors unlikely to increase supply if prices increase?
  • Does the agreement decrease the parties’ decision-making independence and as a result increase the likelihood they will coordinate their behaviour to the detriment of customers?
  • Does the agreement give rise to anti-competitive foreclosure concerns? Does the agreement raise competitors’ costs or limit their capacity to compete effectively?
• Does the agreement generate pro-competitive efficiencies?
  • Does the agreement contribute to improving the production or distribution of products through the combination of complementary activities, skills or assets or because it is a means to share risk, save costs, increase investments, pool know-how, enhance product quality and variety, or launch innovation faster?
  • Are the restrictions indispensable to the achievement of the efficiency gains?
  • Do customers receive a sufficient share of the benefits so that they are at least compensated for the restrictive effects of the agreement?
  • Do the agreements afford parties the possibility of eliminating competition in respect of a substantial part of the products in question?

In anti-competitive vertical agreements, our experts consider questions such as:

• What are the relevant market definitions both for suppliers (upstream) and buyers (downstream)?
• Does the agreement benefit from a ‘safe harbour’ under
  • The de minimis notice (individual market shares below 15 per cent)?
  • The Vertical Block Exemption Regulation (VBER) or Motor Vehicle Block Exemption Regulation (MVBER)?
• Does the vertical agreement affect actual or potential competition to such an extent that appreciable negative effects on prices, output innovation or the variety or quality of goods and services should be expected with a reasonable degree of probability?
  • Does the supplier have market power (at their level in the supply chain)?
  • Does the buyer have market power (at their level in the supply chain)?
  • Does the agreement contribute to the creation, maintenance or strengthening of market power or allow the parties to exploit market power?
  • Does the agreement cause anti-competitive foreclosure of other suppliers or buyers by raising barriers to entry or expansion?
  • Does the agreement soften competition between the supplier and its competitors?
  • Does the agreement soften competition between the buyer and its competitors?

Our experts analyse issues related to practices by dominant firms and address:

• What is the appropriate product and geographic antitrust market?
• Does the defendant have a dominant position in a relevant antitrust market?
• Did the alleged conduct foreclose equally on efficient rivals or consumers?
• Did the defendant’s conduct necessarily have detrimental effects on customers?
• Is there any objective justification for the alleged conduct?
• Is the conduct sufficiently obviously a restriction of competition so that, as a matter of economics, it is not necessary to consider the economic effects of the conduct?

Private Enforcement Actions for Damages

Damages from cartels or other anti-competitive horizontal agreements

In anti-competitive horizontal agreements, our experts answer to questions regarding:

• For claimants who purchased directly from a cartelist (‘Direct Purchasers’)
  • How large was any overcharge due to the cartel?
  • Were cartel prices inflated due to cartel members’ inefficiencies due to a lack of competition (‘baked-in inefficiencies’)
  • Did the claimant pass-on the overcharge to its own customers or otherwise mitigate the damage it suffered from the cartel?
  • Did the infringing conduct lead to any offsetting benefits to the claimant that should be taken account of in assessing the quantum of damages?
• For claimants who purchased only indirectly from a cartel (‘Indirect Purchasers’)
  • How large was any overcharge to the direct purchaser due to the cartel?
  • Is there evidence that the direct purchaser passed (some or all of) the overcharge on and so caused harm to the claimant?
  • Did the claimant pass-on some or all of the overcharge to their own customers?

Damages from anti-competitive vertical agreements

Our experts assess damages claims due to anti-competitive vertical agreements. Doing so involves determining the answers to questions such as:

• To what extent did the vertical agreement (RPM, Selective Distribution etc) harm the claimant?
• Did the vertical agreement provide any off-setting benefits, in particular, by promoting non-price competition and improved quality of services which should be accounted for in the assessment of damages?
  • Did the vertical agreement help solve a ‘free rider’ problem whereby one distributor free-rides on the promotion efforts of another distributor?
  • Did the vertical agreement help a manufacturer open up or enter new markets by providing a reward of exclusivity necessary to allow recoupment of the investment?

Damages from exclusionary or exploitative abuse by a dominant firm

In cases alleging abusive conduct by a dominant firm, our experts may be asked to develop economic evidence relevant to evaluating questions such as:

• Does the public investment qualify as State aid or does it pass the Market Economy Investor Principle (MEIP) test?
• Were the relevant agreements anti-competitive and were there any offsetting efficiency benefits?
• Did the alleged abuse cause harm to the other parties?
• Could the outcomes seen in the market be attributed to other economic factors?
• What was the quantum of damages due to the anti-competitive actions in question?

Our experts’ may advise on:

• What are the likely and desirable outcomes from an inquiry?
• What kind of documentation is the agency likely to ask for?
• What are the questions the agency is likely to ask about the market and the client’s business?
• What are the likely agency interpretations of available documents and data?

In State aid cases, typical issues may include:

• Is the State aid exempted from notification? For example, aid may be covered by a Block Exemption, be de minimis, or granted under an aid scheme already authorised by the Commission.
• Does the aid comply with the regional State aid map for each member state?
• Do the positive effects of the State aid outweigh any negative effects arising from distortions of competition?