European Competition

Our strength in economic theory, empirical analysis and data science allows us to help our clients efficiently and effectively navigate the merger review process. Simultaneously, our experience in collating and processing large datasets minimises the burden placed on internal business teams. Our expertise is reflected by our involvement in landmark cases that have set the course of merger control in Europe and around the world.

As well as navigating the merger review itself, we can assist in the planning stages of a transaction: identifying competition problems in advance and undertaking pre-emptive work that smooths and speeds up the notification process. As part of this we can also help construct and assess remedies packages that will help mitigate competition concerns.

Authorities and courts recognise the need to assess the effects of potentially-abusive conduct. Economic analysis plays a key role in formulating and assessing potential “theories of harm” and collecting the data to test whether they apply in practice. We have worked on some of the most high-profile abuse cases of recent years, providing detailed and bespoke economic analyses for our clients.

Most forms of conduct will have alternative, pro-competitive justifications. Given these trade-offs, we use economic models of firm and consumer behaviour, as well as empirical analysis, to assess whether consumers, and not just competitors, are adversely affected. We work with our clients and their legal teams to navigate competition investigations as well as advising them in advance on whether their own conduct, or that of their competitors, could be considered abusive.

Economic analysis can play a key role in identifying whether an exchange of information had an adverse effect on competition in the market and distinguishing between pro- and anticompetitive conduct. Even in cartel cases economics is playing a greater role – especially in terms of assessing the effectiveness of the cartel, which can be an important element in negotiating a settlement with the authorities. CRA has considerable experience in assessing horizontal agreements and in conducting effects-based analysis.

Competition investigations are increasingly triggering significant claims for damages from potentially-affected parties. This is true not just of cartels, but also of conduct cases, and courts across the world place weight on expert economic evidence that can help them understand the conduct at issue and quantify its effects.

When faced with the rigors of the litigation process, CRA provides clients with credible, clear and independent analysis for submission in legal proceedings and a track record of experience with testifying in courts and tribunals around the world. Our experience and analytical rigour helps ensure a strong performance when working on such cases and when explaining one’s analysis under cross examination in court.

Recent years have seen an increase in the number of antitrust investigations of the behaviour of holders of important intellectual property rights. This trend is only likely to continue given the increasing emphasis on dynamic efficiency and the impact the competitive process in general, and horizontal mergers in particular, have on the pace and extent of innovation. From investigations of standard-essential patent licensing to “pay for delay” settlements, we have been deeply involved in issues arising at the intersection of competition and IP policy.

State aid has become a central concern of the European Commission, and this has coincided with a more economic approach to the assessment. In particular, state aid cases took on a new dimension in the wake of the 2008 financial crisis, as the unprecedented severity of the crisis resulted in significant amounts of State support being granted to financial institutions and other companies. CRA has helped various companies and governmental departments to assess whether the aid in question is state aid, and if it is, whether this aid is compatible with the state aid rules. To this end, we have advised on the terms of some of the most high-profile government interventions.

Effects-based analyses are playing an increasingly important role in the assessment of vertical agreements such as most favoured nation clauses and restrictions on downstream distribution. Given the recognised efficiency benefits of vertical restrictions in terms of internalising externalities within the supply chain and resolving free-rider issues, our analysis can help distinguish between pro- and anticompetitive practices.