Mergers, standard of proof and expert economic evidence

Journal of Competition Law and Economics

Volumn 2, Issue 1, 2006, Pages 71-100

  Botteman, Yves ^a  

^a Linklaters ^*  (Belgium)

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EID: 33645552471     PISSN: 17446414     EISSN: 17446422     Source Type: Journal    
DOI: 10.1093/joclec/nhi027     Document Type: Article

References (129)

1. See Case COMP/M. 3083-GE/Instrumentarium, Commission decision of 2 September 2003;
2. Case COMP/M. 3216-Oracle/PeopleSoft, Commission decision of 26 October 2004.
3. See publication sponsored by the Commission, "Technical Report-Effects of Mergers Involving Differentiated Products," COMP/B-1/2003/07, 7 October 2004, http://europa.eu.int/comm/competition/mergers/others/ effects_mergers_involving_differentiated_products.pdf (visited on 5 July 2005).
4. IBC conferences held in London on 11-12March 2004 and in Brussels on 27-28 January 2005 entitled "The Use of Economics in Competition Law".
5. RBB Brief 12, "The emperor's new clothes? The role of merger simulation models," January 2004;
6. Ben Dubow, David Elliott & Eric Morrison, "Unilateral effects and merger simulation models," 25(2) ECLR 114 (2004)
7. Gregory Werden, Luke Froeb & David T. Scheffman, "A Daubert discipline for merger simulation," Draft of 16 February 2004 (on file with the author)
8. David Scheffman & Mary Coleman, "Quantitative analyses of potential competitive effects from a merger," 9 June 2003;
9. Marc Ivaldi & Frank Verboven, "Quantifying the effects from horizontal mergers in european competition policy", Int'l J. of Indus. Org. (vol 23, n. 9, December 2005, pp. 669-691)
10. and Roy J. Epstein & Daniel L. Rubinfeld, "Merger simulation, a simplified approach with new applications," 69 Antitrust L.J. 883 (2004).
11. This question is closely associated with the yet unresolved issue of the standard of proof applicable to merger cases. For a detailed discussion of that issue, see, inter alia, David Bailey, "Standard of proof in EC merger proceedings: A common law perspective," 40 CMLR 845 (2003)
12. Bo Vesterdorf, "Standard of proof in merger cases: Reflections in the light of recent case law of the community courts," BIICL-Third Annual Merger Conference, 6 December 2004;
13. Mario Siragusa, Judicial Review of Competition Decisions Under EC Law, UK Competition Commission Papers, 2004.
14. ECJ, Case C-12/03 P, Commission v. Tetra Laval, not yet reported.
15. The standard of proof is probably higher than a mere 50/50 probability that the economic harm will materialize as a result of the merger.
16. Note that this section does not discuss what standard of proof the Commission has to meet to satisfy itself that a merger does not raise significant concerns and should be allowed to proceed. On this point, see the Commission's decision in the SEB/Moulinex merger and the subsequent ruling of the CFI in Case T-114/02, Babyliss v. Commission, [2003] ECR II-1279.
17. See on this point David Bailey, "Standard of proof in EC merger proceedings", 40 CMLR 2003, 845 at p. 848. The standard of proof is to be distinguished from the neighbouring concept of burden of proof. While the former relates to the evidentiary threshold that has to be met before a decision can be rendered in a case, the latter deals primarily with procedural rules that determine who has to discharge the evidentiary threshold. In this article, the burden of proof is not discussed in any detail since Article 2 of the Merger Regulation makes clear that it is for the Commission to meet a certain evidentiary threshold before it is allowed to block a merger.
18. Council Regulation No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings, OJ 2004 L 24/1 (hereinafter the "Merger Regulation").
19. Certain commentators have suggested that the probability that a merger is anticompetitive should be somewhere around 70%. It should be noted that the determination of the standard of proof is to some extent closely connected with the "false positives" and "false negatives" problem in antitrust decision-making. See, e.g., Ken Heyer, "A world of uncertainty: Economics and the globalization of antitrust", 72 Antitrust L.J. 375 (2005).
20. See Opinion of Advocate-General Tizzano of 25 May 2004 in Case C-12/03, Commission v. Tetra Laval, para 74. This sentence refers to the general principle of good administration under which the Commission must operate in carrying out its merger investigations and is a means to achieve the expected outcome, i.e. that the case be supported by cogent and consistent body of evidence.
21. See in particular, Case T-310/01, Schneider Electric v. Commission, [2002] ECR II-4071, para 109.
22. Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings, OJ 2004 C 31/5.
23. Ibid, para 29. Diversion ratios calculate the amount of lost sales by product A to product B when the price of product A increases by a certain percentage. Diversion ratios can be estimated using own-price and cross-price elasticities. A high diversion ratio between two products indicates that the products are close substitutes. A less sophisticated alternative to diversion ratios includes customer switching studies or win/loss analyses.
24. Critical loss analysis calculates the volume losses that would be necessary to make a post-merger price rise unprofitable and determines whether such a loss would be likely in view of the characteristics of the industry. Critical loss is considered as a useful tool to define markets, but can also, in certain circumstances, be used to assess the unilateral effects of a merger by providing the minimum lost sales necessary to defeat a price increase. Critical loss analysis has been used by the Commission in recent merger cases such as, Case COMP/M 3060-UCB/Solutia, Commission decision of 31 January 2003, para 42.
25. Regression analysis assesses the relationship between one variable called the explained, or dependant, variable and one or more other variables called explanatory variables. Regression analyses are used as a quantitative technique to examine how the variable in question (e.g. price) is affected by a number of other variables (e.g. reduction in the number of competitors or the increased level of concentration). As we shall see below, regression models have been used recently in GE/ Instrumentarium and Oracle/PeopleSoft.
26. Merger simulation models have recently emerged in EU merger cases as a quantitative technique used to estimate the price effects of a merger. See, e.g., Case COMP/M. 3191-Philip Morris/Papastratos, Commission decision of 2 October 2003, para 32, where a merger simulation was presented by the merging parties to demonstrate that the price impact of the concentration would be minimal.
27. Note that this article concentrates on the use of the most complex econometric tools in merger investigations.
28. See Ali Nikpay & Fred Houwen, Case comment, "Tour de Force or a little local turbulence? A heretical view on the Airtours judgment", 24(5) ECLR 2003, 196, at 202.
29. See Section III below.
30. The parties have a duty to provide complete, accurate and non-misleading information. See Article 14 of the Merger Regulation.
31. Ali Nikpay & Fred Houwen, see above note 21, at 199.
32. Case T-5/02, Tetra v. Commission, [2002] ECR II-4381, para 148.
33. Opinion of Advocate-General Tizzano of 25 May 2004 in Case C-12/03, Commission v. Tetra Laval, para 74.
34. ECJ, C-12/03 P, Commission v. Tetra Laval, not yet reported, para 44.
35. In preliminary injunction cases, US courts apply the "preponderance of the evidence" standard.
36. One may question whether the strict timetables set forth in the Merger Regulation conflict with the evidentiary requirements. It seems to us that, in view of the necessity to base its opinion on solid factual grounds the Commission will probably continue to make extensive use of the "stop the clock" provision under Article 11 ECMR. For instance, in the Oracle/PeopleSoft merger, the clock was stopped twice and the review period was extended by about 6 months.
37. Case T-342/99, Airtours v. Commission, [2002] ECR II-2585, para 142.
38. Opinion of Advocate-General Tizzano of 25 May 2004 in Case C-12/03, Commission v. Tetra Laval, para 73.
39. See, e.g., Gregory J. Werden and Luke M. Froeb, "Unilateral competitive effects of horizontal mergers", in Advances in the Economics of Competition Law (MIT Press), draft of 14 January 2005 (on file with the author).
40. The other limbs of the test include evaluating the extent to which the non-merging parties could be considered distant substitutes for the merging firms and their ability to reposition their offering in response to a price increase by the merged entity.
41. This would include whether the reasoning of the Commission satisfies "requirements of logic, coherence and appropriateness". See ECJ, Joined Cases C-68/94 and C-30/95 France and Others v. Commission, [1998] ECR I-1375 ("Kali and Salz"), para 229-241.
42. See, e.g., ECJ, Case 42/84, Remia and Others v. Commission, [1985] ECR 2545, para 34, and Joined Cases 142/84 and 156/84;
43. BAT and Reynolds v. Commission, [1987] ECR 4487, para 62;
44. Case C-7/95, John Deere v. Commission, [1998] ECR I-3111, para 34: "[The Court]'s review of complex economic appraisals made by the Commission is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or a misuse of powers".
45. Case T-156/98, RJB Mining v. Commission, [2001] ECR II-337, para 87.
46. ECJ, C-12/03 P, Commission v. Tetra Laval, para 38.
47. Opinion of Advocate-General Tizzano of 25 May 2004 in Case C-12/03, Commission v. Tetra Laval, para 74.
48. ECJ, C-12/03 P, Commission v. Tetra Laval, para 39.
49. Opinion of Advocate-General Tizzano of 25 May 2004 in Case C-12/03, Commission v. Tetra Laval, para 86.
50. Case T-5/02, Tetra v. Commission, [2002] ECR II-4381, para 162.
51. See, e.g., Case T-342/99, Airtours v. Commission, [2002] ECR II-2585, para 82.
52. This is obviously part of the Commission's "margin of discretion with regard to economic matters".
53. Case T-342/99, Airtours v. Commission, [2002] ECR II-2585, para 127.
54. ECJ, C-12/03 P, Commission v. Tetra Laval, para 39: "Not only must the Community Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it" (emphasis added).
55. See Case T-342/99, Airtours v. Commission, [2002] ECR II-2585, para 127.
56. Case T-342/99, Airtours v. Commission, [2002] ECR II-2585, para 114-115;
57. Case T-5/02, Tetra v. Commission, [2002] ECR II-4381, para 245 and para 290.
58. Case T-310/01, Schneider Electric v. Commission, Judgment of the Court of 22 October 2002, [2002] ECR II-4071, at para 259.
59. Among others, the CFI observed that the Commission, in assessing the foreseeable effects of leveraging in the PET packaging market, did not inquire into the competition that Sidel faced in the market for high-capacity SBM machines (i.e. one element of a PET filing line). In fact, it turned out that Sidel faced at least three strong competitors on that market. The CFI concluded that the Commission should have examined the ability of that competition to resist leveraging on the part of the merged entity. Case T-5/02, Tetra v. Commission, [2002] ECR II-4381, para 300.
60. For instance, in Airtours, the Commission considered that, in a market subject to high volatility of demand, the cautionary approach adopted by the suppliers of package holidays in planning capacity for the next season was illustrative of collective dominance. The CFI rejected that view holding that "caution [in capacity planning] cannot, therefore, be interpreted, as such, as evidence of collective dominance rather than as a characteristic of a competitive market of the kind that existed at the time of the notification". Case T-342/99, Airtours v. Commission, [2002] ECR II-2585, para 142. In the same case, the CFI noted that the Commission's conclusions relating to the fact that some tour operators were vertically integrated was contradictory (para 105 and 106).
61. The CFI in Tetra Laval articulated the conglomerate merger test as follows: "in a case where the markets in question are neighbouring markets and one of the parties to a merger transaction already holds a dominant position on one of the markets, the means and capacities brought together by the transaction may immediately create conditions allowing the merged entity to leverage its way so as to acquire, in the relatively near future, a dominant position on the other market. This could especially be the case where the relevant markets are tending to converge and where, in addition to the dominant position held by one of the parties to the transaction on a market, the other party, or one of the other parties, to the transaction holds a leading position on another market". Case T-5/02, Tetra v. Commission, [2002] ECR II-4381, para 151.
62. Case T-342/99, Airtours v. Commission, [2002] ECR II-2585, para 210.
63. Ibid, para 213.
64. Ibid, para 159.
65. Ibid, para 167.
66. Case T-310/01, Schneider Electric v. Commission, [2002] ECR II-4071, para 139-140.
67. Ibid, at para 142.
68. In the Woodpulp and Dyestuffs cartel cases, the ECJ appointed experts to assist it in the adjudication of complex economic questions. See, Woodpulp II, ECJ, Joined cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85, A. Ahlström Osakeyhtiö and others v. Commission, [1993] ECR I-1307, para 31-32;
69. ECJ, Case 48/69, ICI v. Commission, [1972] ECR 619.
70. To some extent, the use of econometric expert opinions inWoodpulp II was motivated by the fact that the Commission's case rested on a limited set of facts, i.e. parallelism in prices meant that concert between the pulp producers was at play, that needed to be tested against the possibility that the normal operation of the market was a more plausible explanation for the uniformity of prices than a concerted action. Given that merger investigations are more and more dataand facts-intensive, it is unclear whether the Courts would appoint their own experts. In this regard, recent practice of the CFI, e.g. in the Microsoft appeal, indicates that when cases are factually well prepared by both sides, there is no need to call independent experts to testify before the Court.
71. This would be consistent with the view that the manifest error standard is not limited to obvious or glaring errors of appraisal.
72. The presence of expert economists in the court-rooms in Luxembourg is not new and recently economists acting for both the Commission and the appellant made representations before the CFI in the General Electric's appeal against the Commission decision in the GE/Honeywell merger. Since the case is still pending, it is not clear yet whether their representations will be paramount to the CFI's decision.
73. The latter standard had been put forward by the Court of First Instance in Case T-5/02, Tetra v. Commission, [2002] ECR II-4381, para 148.
74. See, e.g., the dissolution of the Merger Task Force, the creation of the Chief Economist Office, the peer-review panel and the mechanism of state-of-play meetings at critical stages of an investigation.
75. The most important of which is in our view the introduction of more flexibility in the strict time limits and deadlines for the Commission to complete its investigation and render decisions.
76. 15 United States Code (USC) §18 (2000).
77. FTC v. H.J. Heinz Co., 246 F.3d 708 at 713 (Congress used the words "may be substantially to lessen competition" to indicate that its concern was with probabilities, not certainties)
78. Hospital Corp. of America v. FTC, 807 F 2d 1381, 1389 (7th Cir 1986) (Section 7 does not require that a merger or other acquisition [will] cause higher prices in the affected market. All that is necessary is that the merger create an appreciable danger of such consequences in the future).
79. In US courts, expert testimonies are admitted into evidence in accordance with the Daubert doctrine. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). To be admissible under Federal Rule of Evidence 702, expert testimony must come from a qualified expert, assist the trier of fact, and meet three foundational requirements: The testimony must be (1) based on sufficient facts or data, (2) the product of reliable principles and methods, and (3) a reliable application of principles and methods to the facts of the case. The Daubert doctrine focuses primarily on the second and third foundational requirements: Whether the expert's reasoning or methodology is scientifically valid and whether that reasoning or methodology can be properly applied to the facts at issue. In short, Daubert is about the "reliability" of the scientific principles and methods at issue and about the adequacy of the "fit" between that science and the facts of the case.
80. U.S. v. Oracle, 331 F. Supp. 2d at 1098, (N.D. Cal, Sept 9, 2004)
81. FTC v. Arch Coal, Inc., 329 F. Supp. 2d 109 (D.D.C. Aug 15, 2004)
82. U.S. Dairy Farmers of America, Inc., No. 03-206-KSF (E.D. Ky. Aug. 31, 2004)
83. U.S. v. Sungard, 172 F. Supp. 2d 172 (DDC 2001).
84. U.S. v. Philadelphia National Bank, 374 U.S. 321 (1963) (holding that a merger that results in a significant increase in market share and concentration must be enjoined unless there is evidence clearly showing absence of anticompetitive effects).
85. FTC v. Arch Coal, 329 F. Supp 2d (D.D.C. 2004), 109 at 129.
86. Ibid, at 138.
87. See Mark Glueck and Henley Manning, Economic issues in 2003-2004, available at www.globalcompetitionreview.com/ara/us_economics.cfm (visited 5 July 2005).
88. For additional commentaries on Arch Coal, see, e.g., James A. Keyte, "Arch Coal and Oracle Put the Agencies on the Ropes of Proving Anticompetitive effects", Volume 19, No. 1, Antitrust, Fall 2004, p. 79;
89. Janet McDavid & Gretchen Fritz, "Antitrust law and 'Arch' and 'Oracle' cases", The National Law Journal, 1 November 2004.
90. FTC v. Staples, 970 F. Supp. 1066 (DDC 1997). For an overview of the economic analysis conducted by the FTC in the Staples/Office Depot merger,
91. see, e.g., Jonathan Baker, "Econometric analysis in FTC v. Staples, Prepared remarks before the ABA Antitrust Section Economics Committee", 18 July 1997 available at www.ftc.gov/speeches/other/stspch.htm (visited 5 July 2005)
92. see also GregoryWerden & Luke Froeb, "Unilateral competitive effects of horizontal mergers", Draft of 14 January 2005, Forthcoming in Paolo Buccirossi, Advances in the Economics of Competition Law (MIT Press), presented at the IBC Conference in Brussels on 27-28 January 2005 on "The Use of Economics in Competition Law", at p. 71.
93. U.S. v. Oracle, 331 F. Supp. 2d, 1098.
94. The Court held that "a presumption of anticompetitive effects from a combined share of 35% in a differentiated products market is unwarranted. Indeed, the opposite is likely true" (U.S. v. Oracle, 331 F. Supp. 2d, 1098 at 1123).
95. The 35% threshold or presumption may not be adequate in the context of differentiated product mergers because it does not say anything about the closeness of competition between the merging parties and the ability of rivals to reposition.
96. The court found their testimony "largely unhelpful". The court questioned the ground "upon which these witnesses offered their opinions on the definition of the product market and competition within that market" (U.S. v. Oracle, 331 F. Supp. 2d, 1098 at 1130).
97. U.S. v. Oracle, 331 F. Supp. 2d, 1098 at 1120.
98. Ibid, at 1155.
99. Ibid, at 1118.
100. The court held "simply because Oracle and PeopleSoft often meet on the battlefield and fight aggressively does not lead to the conclusion that they do so in the absence of SAP" (U.S. v. Oracle, 331 F. Supp. 2d, 1098 at 1169).
101. U.S. v. Oracle, 331 F. Supp. 2d, 1098 at 1170.
102. This seems to have also been the case with Judge Hogan in Staples;
103. see Econometric analysis in FTC v. Staples, Prepared remarks of Jonathan Baker before the American Bar Association's Antitrust Section, Economics Committee, 18 July 1997, available at www.ftc.gov/speeches/other/ stspch.html (visited 5 July 2005).
104. For a comprehensive overview of economic tools available and their practical use in EC merger control, see Derek Ridyard, "The role of Economics in European Merger Control", in Nicholas Levy, European Merger Control Law, a Guide to the Merger Regulation (LexisNexis, 2003), Chapter 24.
105. Case COMP/M. 3083-GE/Instrumentarium, Commission decision of 2 September 2003; and Case COMP/M. 3216-Oracle/PeopleSoft, Commission decision of 26 October 2004.
106. Obviously, those cases are not the only ones in the recent past where econometric evidence was produced. They are merely cited here to illustrate the growing reliance on econometrics. Cases where economic analyses played a central role also include case COMP/M. 3333-Sony/BMG, Commission decision of 19 July 2004. It was a coordinated effects merger case where the Commission reviewed extensively pricing data of the five major music recording companies to examine the extent to which the music recording industry was characterized by price parallelism.
107. Case COMP/M. 3083 - GE/Instrumentarium, Commission decision of 2 September 2003, in particular para. 131 ff.
108. A regression analysis seeks to explain how changes in prices are explained by a number of factors such as the number of bidders, the identity of the bidder, the size of the customer, or the specific package offered to the customer.
109. For an explanation on the econometric models used in this case see, RBB Brief 14, "Assessing unilateral effects in practice: Lessons from GE/ Instrumentarium", May 2004.
110. Case COMP/M. 3083 - GE/Instrumentarium, Commission decision of 2 September 2003, para 185-86. The Commission further held "as there is no objective way for the Commission to verify the validity of these discounts, the Commission cannot rely on the results of the econometric study presented by RBB".
111. Case COMP/M. 3083-GE/Instrumentarium, para 248 and 278.
112. Case COMP/M. 3216-Oracle/PeopleSoft, para 136.
113. Ibid, para 201.
114. In GE/Honeywell, a third party submitted a mixed-bundling model to predict that there would be an incentive for the combined entity to offer package discounts to customers who buy both GE engines and Honeywell products. However, the Commission did eventually not rely on it in its final decision. See, Mathias Pflanz and Christina Caffarra, "The economics of GE/Honeywell", [2002] ECLR 115-121, at 116.
115. At a seminar organized by the Global Competition Law Centre on 4 February 2005 on the Oracle/PeopleSoft merger, Claes Bengtsson, the economist from the Office of the Chief Economist who acted in this case, explained that the integration of additional players into the model no longer resulted in consistent-across the board-price increases. That is, in a three to two context, modifying the values attributed to each variable of the model did not have a significant impact on the projected price increases. However, in a four to three merger, the model no longer produced consistent results (i.e. the price increase pattern was no longer clearly apparent).
116. Case COMP/M. 3216-Oracle/PeopleSoft, para 193.
117. Ibid, para 194.
118. Ibid, para 195.
119. See closing address of Mr. Philip Lowe, Director General of DGCOMP, "Antitrust reform in Europe: A year in practice", IBA/European Commission Conference papers, 10-11 March 2005, available on the website of DGCOMP at http://europa.eu.int/comm/competition/speeches/text/ sp2005_003_en.pdf (visited 5 July 2005).
120. See Gregory J. Werden, Luke M Froeb and David T. Scheffman, "A Daubert discipline for merger simulation", draft of February 16, 2004 available at www.ftc.gov/be/daubertdiscipline.pdf (visited 5 July 2005).
121. Jonathan Baker, "Econometric analysis in FTC v. Staples", Prepared remarks for the American Bar Association's Antitrust Section, Economics Committee, July 18, 1997, available at www.ftc.gov/speeches/other/stspch.html (visited on 5 July 2005).
122. The transparency will not affect the admissibility of the evidence but the robustness and reliability of an econometric model.
123. See, e.g., D. Scheffman and Mary Coleman, "FTC perspectives on the use of econometrics in antitrust cases", FTC Bureau of Economics Working Paper, 2002.
124. Ben Dubow, David Elliott and Eric Morrison, "Unilateral effects and merger simulation models", 25(2) ECLR 114 (2004), at 115.
125. See Lorna Hutchinson, "EC making increasing use of merger simulation techniques in antitrust probes; market definition taking back seat", Mergermarket, 31 January 2005.
126. Gregory Werden and Luke Froeb, "Unilateral competitive effects of horizontal mergers", Draft of 14 January 2005, Forthcoming in Paolo Buccirossi, Advances in the Economics of Competition Law (MIT Press), presented at the IBC conference in Brussels on 27-28 January 2005 on "The use of economics in competition law".
127. Jonathan Baker, "Econometric analysis in FTC v. Staples", Prepared remarks for the American Bar Association's Antitrust Section, Economics Committee, 18 July 1997, available at www.ftc.gov/speeches/other/stspch.html, at n 64.
128. As discussed above, unlike the DOJ and the FTC in the United States, the Commission is in fact the judge of first instance.
129. See Matthias Pflanz, "Oracle/PeopleSoft: The Economics of the EC review", 26(3) ECLR 123 (2005), at 127.