Benefits of Using Economics in Competition Law Assessment Answer

Introduction

Economics is very important to people who work in competition because it helps them figure out if a business strategy hurts competition or not. To do this, you need to look closely at how the market works, how people act, and how the way businesses run different ways of competing with each other.

Understanding Market Structure and Power: Economics helps us figure out what market is important, which is the first thing we need to do to look at competition. This means figuring out what the service or product is, what other options there are, and how big the market is in terms of location. How the market is set up is very important to know because it tells you how much competition there is and how much power each company has in the market. Company with a lot of market power can do things that hurt competitors more easily. This is why market power is important.

Business Practices: Economists look at specific business practices after they have explained the market. A lot of different things fall under this category, such as setting prices, charging too much, mergers and acquisitions, exclusive deals, and abuse a position of power. To find out if these actions will hurt business and customers, economic tools are used. One way to tell if a company has strong pricing is to see how it deals its costs and how long these price strategies will last.

Finding Things That Help and Hurt companies: Economics isn't just about finding things that people might lose; it's also about finding things that companies can gain. Just to give you an idea, a union could help people save a lot of money. Economists compare these possible bad effects on competition to the good effects in a number of real-world and mathematical ways.

Improve the well-being of customers: This is usually the main goal of market strategy. This is how economists figure out if a business practice makes prices go up, quality go down, new ideas stop coming up, or customers have less choice. It is important to keep in mind how this affects the business and end users as a whole.

Econometric and statistical tools: In the current study of competition cases in economics, complex econometric models and statistical tools are often used. These are used to look at large amounts of data, like sales data broken down by transaction, to see how competition works and how business practices affect it.

Markets Depending on New Products: It's harder to do economic study when new products come out quickly in a market, like in technology or drugs. It's not enough for economists to just look at how the market is set up and how much competition there is. They also have to guess what will happen to the market and how business methods will affect new ideas. In a world where everything is linked, competition authorities have to think more and more about how business practices affect people all over the world. To do this, we need to take a broader look at the economy, taking into account things like global trade, effects that happen across countries, and the role that global companies play.

Lawyers and economists often need to work together closely when economics is used in trade cases. Standards for the law and economic study must work together to get good results that follow the law. Based on economic study alone, there are some issues that come up when there is competition. When the market is really difficult, some people say that economic models might make things too easy. They also say that spending too much on efficiency could mean ignoring other values that are just as important, like fairness or protecting small businesses.

Competition economics is an area that is always getting new ideas, models, and ways to do research. This means that its role is always changing. In the digital economy, this is a must if you want to keep up with how markets change.

At the end of the day, economics is a useful set of tools for competition authorities who want to study how businesses work. Theory models and real-world data analysis are used together in economics to help people make smart decisions about what is good or bad for business and customer happiness.

Competition officials are very important in today's global economy because things change so quickly. They make sure that markets are fair and competitive. They need to know a lot about economics to do their job well because it tells them if a business move hurts competitors or not. When we think about how different business practices affect competition, customer happiness, and the market's efficiency, we can use economics as a guide. This piece talks about how important economics is for people who are in charge of competition. It looks at a few of the most important ideas and tools used to spot actions that hurt competitors.

Why Having a Fight is Good

Prices go down, new ideas come up, and customers have more choices. This is why competition is an important part of modern market economies. To make sure that resources are used in the best way possible, strong competition makes things run more smoothly and efficiently. There are benefits to competition, but they are lost when companies work together, abuse their market power, or merge in ways that hurt competition.

The European Commission or the Federal Trade Commission (FTC) in the US are in charge of competition. It is their job to protect and promote competition in their own areas. In order to do their job well, they need to know if the way businesses act hurts competition.

Using Economics to Look into Cases of Antitrust

The most important part of trade investigations is to look into the economy. To figure out if a business practice is likely to hurt or help customers, competition officials use economic theories and models. When we look at trade cases, the business is often very important in these areas:

To look at anticompetitive behaviour, one of the first things that needs to be done is to figure out the right market. An economist's job is to figure out what the product or service is and how big the market is in terms of space. It's very important to know what a market is so that we can look at market power and how it might hurt competition.

A lot of different tools and methods are used by economists, like the Herfindahl-Hirschman Index (HHI) or the Lerner Index, to figure out who has the most market power. When a business has market power, it can charge more than its rivals without losing a lot of market share. Having a lot of market power can mean that you act in ways that hurt the competition.

Look at how prices change over time with price-cost analysis. This is another important part of economic analysis that is used in trade investigations. Economists check a business's prices to see if they are a lot higher than what it costs to run. And if they are, it might mean that prices are too low or that market power is being abused.

Market: A big part of antitrust study is finding out how a business plan changes the market. Economists try to guess how different actions might change things in the market, such as prices, output, and buyer pleasure. The government can use these tools to see if a certain move hurts customers and the market.

Entry Barriers: To understand how a market works, you need to know what keeps people from joining it. When new companies want to enter a market, there may be legal barriers, high sunk costs, and network effects that make it hard for them to do so.

Reasons why efficiency is good and why competition is good: There are some business methods that don't hurt people even though they look like they would. When people do things that hurt competition, they can tell them apart from those that help competition or make things more efficient. The government checks to see if the pros outweigh the possible negative effects on competition.

Things to use and Ways to Work

Economists use a variety of tools and ways to look at actions that hurt competition. Some of the most common ways to do it are listed below:

A lot of the time, competition officials use the Horizontal Merger Guidelines to figure out how deals and mergers affect competition. By following these rules, you can plan how to find out how a merger could hurt competition. One way to figure out if a merger will hurt competition is to use the SSNIP test, which stands for "Small but Significant and Non-transitory Increase in Price."

Cartels: One of the most important jobs of competition authorities is to find and punish companies that act in a group, which is when they agree on prices or how to split up markets. Economics is a very important subject because it helps us find strange patterns in data about prices and output that could mean that people are working together.

When an economist looks at predatory pricing, they try to figure out if a business is trying to get competitors out of the market by setting prices that hurt them. These models check to see if a business's prices are lower than what it takes to make the goods and if it can make up for lost earnings when competitors leave.

If you want to fully understand vertical limits like exclusive dealing deals or selling price maintenance, you should do a thorough economic analysis. The government is looking into whether these acts hurt industry, force rivals to shut down, or are lawful because they want to be competitive.

Market Studies: People in charge of competition often do market studies to find places where competition might be a problem. Market economists look into how they work, what makes it hard for new businesses to enter, and any unfair business practices that the government may need to step in and stop.

Issues with looking into the economy: Economics is a good way to look at actions that hurt competition, but it can be better. Some of the most important issues that economists and market officials have to deal with are

Access to Data: A lot of business study needs data. But it can be hard to get facts that you can trust, especially when the case is difficult or when the business isn't very open.

Complicated Economic Models: To do a good job with antitrust research, you need to know how to use the economic models that are used. These models can be very hard to understand. It is very important that models accurately show how markets work and other important facts.

Markets That Change Fast: It can be hard to enforce antitrust rules in markets that change fast, like the tech business. Old economic models might not be able to keep up with how markets change over time.

Finding the Right Balance Between Competition and Innovation: To figure out what kind of behaviour hurts competition, you have to weigh the need for competition against the importance of new ideas. Too strict trade rules can make it hard for new ideas to get off the ground.

There are people whose job it is to keep the game fair, and economics has become an important part of their job. It gives us the models, tools, and methods to figure out how different actions affect market efficiency, buyer happiness, and competition. Using tools like market definition, market power measurement, price analysis, and more, the government can find and stop actions that hurt competition.

Economics is a big part of trade investigations, but it can be hard to understand. Experts and people in charge of competition have to work hard to make sure that everyone has access to correct information, deal with markets that are always changing, and find the best balance between competition and new ideas. Competition officials around the world will still need to use economics as a tool as long as competition is a key part of economic growth and customer happiness.

Article 101 TFEU:

EU competition law and the single market work together a lot of the time.1 Articles 101 and 102 TFEU are strictly enforced, which helps the businesses of Member States to work together. Just think of things that make it harder for companies to trade with each other across borders, like market-sharing groups, deals between American companies to keep foreign competitors out, and one-sided actions taken by companies already in the network industries. Similarly, letting things and services move freely makes it easier for businesses to compete with each other. "[f]ree trade is a sort of antimonopoly programme in itself," as Stigler famously said. One thing that makes EU competition law unique is that market unification is a separate goal of the field. In other words, it is protected directly, not just as a good side result of protecting the competitive process. Articles 101 and 102 TFEU are read and implemented with the clear goal of making it easier for the economies of Member States to work together. In this way, EU competition law is different from other rules. Any action that tries to limit trade across borders might be illegal, even if it makes things run more smoothly or hurts competition in some way. The Court of Justice (hereafter, the "Court" or the "ECJ") has made it clear that it wants to continue supporting market integration, even though it has been asked to rethink some of its decisions.

Article 101(1) TFEU says that agreements that are meant to limit trade between Member States are, by their very nature, ones that limit competition. The basic rule against it doesn't just apply to groups that look like cartels, which aren't likely to be good and would be against any competition law system worth the name. It also works for some vertical limits that can make competition between brands stronger and help customers at the same time. Since Consten-Grundig, the Court of Justice (hereafter, the "Court" or the "ECJ") has consistently held that agreements that give a distributor complete protection in their home country10 and agreements that ban exports are, in principle, anticompetitive by nature.

It's clear that deals that try to split up national markets usually go against Article 101(1) TFEU, but it's still not clear where the rule stops. The problem is that these deals are not completely illegal, even though that seems to be the case. From past cases, it is clear that, depending on the economic and legal situation, an agreement meant to divide national markets may not be seen as limiting competition. In some cases, it may even be seen as not being covered by Article 101(1) TFEU at all. When Coditel II came up, the Court said that a broadcaster's exclusive territorial licence did not really hurt competition, even though it gave the owner full security in that territory. Murphy made it clear that this kind of licencing deal can get around Article 101(1) TFEU. But it's not clear from the case law when and why the assumption of illegality is and can be rebutted.

One can't say enough about how important these questions are. The Commission has always put market integration at the top of its list of policy goals. From the beginning, it has spent a lot of time and money trying to stop hurdles to cross-border trade from being built. One way it does this is through marketing deals. The Commission is still committed to market integration more than fifty years after Regulation 17 was made law. It has changed the way it does a lot of things, but not deals that are meant to divide national markets. People treat these deals just as badly, if not worse, than they were 30 or 40 years ago. This paper is being written at the same time as the start of the bold Digital Single Market Strategy (DSMS), which aims to improve access to goods and services online, among other things. At the same time, the Commission said it would start an enquiry into e-commerce.

Article 102:

If a dominant company does something that is likely to shut down other companies in the market, this is called exclusory abuse. If a dominant company does something that takes advantage of its market power, for example by charging too much, this is called exploitative abuse. The advice paper only talks about discriminatory practices.

The study is mostly about the harm that could happen to consumers: The Commission's regulation job is to "make sure that dominant undertakings do not hinder effective competition by shutting out their competitors in an anti-competitive manner, which would be bad for consumer welfare." Consumers and competition both gain when businesses can grow, join new markets, and fight on their own terms, without a dominating firm getting in the way of the competition. Exclusionary behaviour, on the other hand, might lead to big savings that are passed on to customers and are greater than the effects on competition.

For a method based on economics to work, we need to carefully look at how competition works in each market. The economic method is based on looking at how different business actions affect the economy. Each time there is a case of market restrictions, they must be proven. As was already said, the research must also check to see if the benefits of speed trump the drawbacks. To figure out what the harm is to competition and what the expected harm is to consumers, you need to use good economic theory and real-world facts. In the same way, savings should be properly judged using economic analysis and the specifics of each case.

The European Commission came up with the "as-efficient-competitor-test" to figure out how much certain business tactics hurt competition. Compared to other tests, this one is more focused on price and cost and less on benefits. The European Commission also laid out the conditions that must be met in order to use an economic argument.

Article 102 says that actions that keep others from entering a market may be illegal if they hurt customers in any way, whether it's directly or indirectly. When there is harm to middle sellers, it is usually thought that there is also harm to end customers. Because of this, the Commission's main goal is to stop business practices that hurt customers by raising costs or lowering quality and shutting out competitors. In this way, the short, middle, and long-term harms caused by default are all taken into account. Foreclosure means that rivals, real or possible, can't get into a market at all or in a way that makes them money.

Rivals may lose out because of rude behaviour in one of four ways: 1) they fight less strongly; 2) they leave the market; or 3) they don't even try to join the market. The company that has the most market share can either lower demand for rivals' goods or raise their prices directly.

In the first case, default happens because a market leader can improve its place by using practices that keep others out, like charging too little or offering loyalty rewards. If the second scenario happens, a business that is strong on both the upstream market (input market) and the downstream market (relevant market) can raise the prices of inputs, making it more expensive for its competitors to compete in the relevant market.

The most important thing is to tell the difference between business actions that are part of good competition in the market and actions that are part of the powerful company's unfair strategy. One idea in the advice paper is to use the as-efficient-competitor-test as a standard test: The Commission will look into whether the behaviour can keep out a rival that is just as good as the leading company. The "as-efficient-competitor" is a made-up rival that has the same prices as the main company. Foreclosing on a peer that is just as efficient as the main company means that it is charging less than it costs to do business.

It is very important to pick the right cost benchmark for the as-efficient-competitor-test because it is a cost-benchmark test. Along with the long-run incremental cost (LRAIC), the average avoidable cost (AAV) was chosen as a standard. The Commission says that not covering AAC means that the leading business is giving up short-term gains and that a rival who is just as efficient can't serve the intended customers without losing money. If LRAIC isn't covered, it means that the main company isn't recouping all of its fixed costs associated with making the good or service in question. This means that a rival who is just as efficient could be shut out of the market. It's also important to think about other effects, like economies of scale and scope, learning curve effects, or first mover benefits, which may help costs, go down. Each time the as-efficient-competitor-test is used, and each time the cost standards are picked, they are different.

(Regulation (EC) No 139/2004) Prohibition of concentrations:

In recent years, the Commission has emphasised the EC Merger Regulation's "fundamental objective of protecting consumers against the effects of monopoly power (higher prices, lower quality, lower production, and less innovation)" and the similarities between EU and US merger control, namely the need to protect consumer welfare and find ways to make the economy work better. In the past, the EC Merger Regulation was "one of the most dynamic domains in the competition portfolio." Now, it is a "mature area of enforcement" and "a well-oiled machine that draws on many years of experience." Recently, the Commission has become more involved in applying the EC Merger Regulation. Some concentrations have been stopped or put on hold because of objections, while others have been subject to broad commitments. The Commission has also looked into ways that the EC Merger Regulation's jurisdictional scope could be expanded, applied theories of harm that hadn't been actively pursued for several years, and enforced the EC Merger Regulation's more rigorously.

One of the main parts of the European Union's market policies is keeping an eye on mergers.

It is an ex-ante method that is meant to stop mergers, acquisitions, and other types of concentrations that can make a dominating position stronger or create one. Researchers are looking into these mergers to see if they might hurt competition between businesses and, as a result, keep customers from getting important benefits that can come from a market that works well for competition, like new products, low prices, and high-quality goods. There is no doubt that mergers and acquisitions are important for the single market. They can get more people to spend in Europe's economy and make it more competitive. It is also thought that the new focus will make more money and be able to make bigger investments in new ideas because there are more ways to spread out risk through different income streams. It can also keep businesses from going out of business, make them more efficient, and often make the goods and services they give better.

As was already said, though, some of these combos can leave the market with only one player, which can make competition much lower or even create a monopoly. In the short term, these deals that hurt competition can cause prices to go up and buyers to have less power. Long-term, they will make people in the business less likely to try new things and become more efficient. So, the task was to come up with a method that would allow M&A actions to have the most good effects on the European economy while also protecting the strength of the markets involved.

The EU Merger Regulation (EUMR), which is Council Regulation (EC) No. 139/2004, is the law that governs mergers in the EU. The EUMR sets out a number of rules and legal tools to deal with concentrations that affect the whole community and can make it much harder for businesses to compete in the single market. There is also a Consolidated Jurisdiction Notice 8 and Guidelines that go along with the EUMR framework and give more information and advice on both the how to follow the rules and the actual rules for merger control in the EU.

The EUMR sets a two-step test to figure out what the Commission's authority is. First, a deal has to meet the conditions in Article 3 in order to be considered a concentration. Then, the turnover levels in Article 1 must also be met for the concentration to be considered.13 If the deal passes this test, it is thought that the European Commission is the best body to look into it. They would then have exclusive control over it, with a few exceptions for referrals.

In Recital 20 of the EU Merger Regulation, the word "concentration" is defined. It refers to all business transactions that change the organisation of the market and the people who manage the companies involved. Article 3 EUMR builds on the idea and says that a concentration can happen through mergers, the taking over of full or shared control, or the formation of a joint company that can run on its own. A merger is a business plan in which two or more companies come together to form a new legal body with new ownership and management structures. The old companies stop existing as separate entities. It can also happen when one business is taken over by another and no longer lives on its own, but the new business keeps its legal nature. Peugeot S.A. (PSA) and Fiat Chrysler Automobiles (FCA) merged into Stellantis, which was allowed by the European Commission in 2020. This is a recent and well-known example of two companies coming together to form one.

On the other hand, acquisitions are not the same as mergers, even though they are often thought of as such. In an acquisition, one business gets enough shares or assets from another to take control of it. In this case, the bigger and more financially stable company buys the smaller one. The small company no longer officially exists as a separate business because it is now part of the bigger project, and no new organisation is made. 17 Article 3 (1)(b) EUMR makes it clear that this kind of concentration can happen by buying assets or securities, through a contract, or in any other way that works. The acquiring company can have direct or indirect control over all or part of the other business.

A person cannot just buy shares in another company and be subject to merger control rules. The deal must also give the buyer full or joint control over the target company.19 Also, this kind of control has to be long-lasting. This means that deals that only lead to a short-term change of control are not covered by the rule.

As a goal of EU competition law, market unity is one of a kind. It makes sense, and maybe even a good idea, that Articles 101 and 102 TFEU are interpreted in a way that doesn't get in the way of creating an internal market. It is not likely that the Court and the Commission will change their minds about their work on market integration any time soon. In light of this, the first goal of this piece is to list the situations where agreements meant to divide national markets are not allowed. The second goal is to come up with a practical legal test that can be used to judge whether these agreements are legal.

It's hard to understand the case law because deals that try to split up national markets aren't always illegal. There are times when they don't limit competition by item. Case law shows that the main question here is whether the agreements limit competition that would have happened anyway if they weren't for the agreements. It is possible to think of two main situations where limits on trade across borders are not inherently against Article 101(1) TFEU. First, cooperation between firms may be truly necessary to reach the goals that everyone wants. Secondly, it's possible that competition isn't possible because of the rules that govern the deal. People have known for a long time that parallel trade limits are okay when they are needed to get into a new market or for a patent holder to bring a new technology to the market. The other situation is very important to understand the case law, but it hasn't been stressed enough in the writings. This helps us understand Coditel II and Erauw-Jacquery. If an agreement stays within the subject matter and geographical reach of an intellectual property right, it doesn't stop competition that would have happened anyway. In these situations, competition is not allowed by the deal itself, but by the laws that apply. Article 101(1) TFEU has mostly been used to apply to deals that limit parallel trade in situations where EU competition law did not get in the way of using intellectual property rights. This was the case for almost 30 years. Most of these cases involved situations where rights had already been used up and the deals were still outside the subject matter and geographical area of the intellectual property right in question. Once the Murphy decision came down in 2011, the Commission began to look into the state of cross-border restraints in situations that were more like the ones in Coditel II. As time goes on, new information will help make the parts of the case law that are still debatable or uncertain clearer.

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