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This page intentionally left blank
Cases in European Competition Policy

Competition between firms is usually the most effective way of delivering economic
efficiency and what consumers want. However, there is a balance to be struck. Firms
must not be over regulated and so hampered in their development of innovative
products and new strategies to compete for customers. Nor must they be completely
free to satisfy a natural preference for monopoly, which would give them higher
profits and a quieter life. The economic role of competition policy (control of anti-
competitive agreements, mergers and abusive practices) is to maintain this balance,
and an effective policy requires a nuanced understanding of the economics of
industrial organisation. Cases in European Competition Policy demonstrates how
economics is used (and sometimes abused) in competition cases in practical competi-
tion policy across Europe. Each chapter summarises a real case investigated by the
European Commission or a national authority and provides a critique of key aspects
of the economic analysis.

Bruce Lyons is Professor of Economics and Deputy Director of the ESRC Centre for
Competition Policy at the University of East Anglia, Norwich.
Cases in European
Competition Policy:
The Economic Analysis

Edited by

Bruce Lyons
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore,
São Paulo, Delhi, Dubai, Tokyo

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521886048
© Cambridge University Press 2009

This publication is in copyright. Subject to statutory exception and to the

provision of relevant collective licensing agreements, no reproduction of any part
may take place without the written permission of Cambridge University Press.
First published in print format 2009

ISBN-13 978-0-511-65182-3 eBook (NetLibrary)

ISBN-13 978-0-521-88604-8 Hardback

ISBN-13 978-0-521-71350-4 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy

of urls for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
 Contents

Contents by potentially anticompetitive business practices page viii

Contents by markets x
List of figures xi
List of tables xiii
List of contributors xv
Preface xvii

Introduction: the transformation of competition policy in Europe

Bruce Lyons 1

A Anticompetitive behaviour by firms with market power 23

Introduction 23

A.1 Abuse of a dominant position 27

1 Michelin II – The treatment of rebates
Massimo Motta 29

2 Interoperability and market foreclosure in the European

Microsoft case
..
Kai-Uwe Ku hn and John Van Reenen 50

A.2 Market investigations 73

3 Mobile call termination in the UK: a competitive bottleneck?
Mark Armstrong and Julian Wright 75
vi Contents

4 Relationship between buyer and seller power in retailing:

UK supermarkets (2000)
Paul W. Dobson 100

B Agreements between firms 129

Introduction 129

B.1 Cartels 135

5 The graphite electrodes cartel: fines which deter?
Morten Hviid and Andreas Stephan 137

6 Assessment of damages in the district heating pipe cartel

Peter Mo/ llgaard 159

B.2 Other horizontal agreements 177

7 Interchange fees in payment card systems: price remedies
in a two-sided market
Jean-Charles Rochet 179

8 The Orders and Rules of British Horseracing: anticompetitive

agreements or good governance of a multi-sided sport?
Bruce Lyons 192

B.3 Vertical agreements 217

9 Efficiency enhancing or anticompetitive vertical restraints?
Selective and exclusive car distribution in Europe
Frank Verboven 219

10 Beer – the ties that bind

Michael Waterson 245

11 Parallel trade of prescription medicines: the Glaxo Dual

Pricing case
Patrick Rey and James S. Venit 268
vii Contents

C Mergers 283

Introduction 283

C.1 Measurement of unilateral effects 291

12 A merger in the insurance industry: much easier to measure
unilateral effects than expected
Christian Gollier and Marc Ivaldi 293

13 Merger simulations of unilateral effects: what can we learn

from the UK brewing industry?
Margaret E. Slade 312

C.2 Coordinated effects 347

14 The ups and downs of the doctrine of collective dominance: using
game theory for merger policy
Eliana Garces-Tolon, Damien Neven and Paul Seabright 349

15 Capacity constraints and irreversible investments: defending against

collective dominance in UPM Kymmene/Norske Skog/Haindl
..
Kai-Uwe Ku hn and John Van Reenen 383

C.3 Vertical and conglomerate effects 411

16 Vertical effects between natural gas and electricity production:
the Neste–IVO merger in Finland
Rune Stenbacka 413

17 Horizontal, vertical and conglomerate effects: the GE–Honeywell

merger in the EU
Xavier Vives and Gianandrea Staffiero 434

Bibliography 465
Index 482
Contents by potentially anticompetitive
business practices

Business practices Chapters

Pricing practices
Below-cost selling 4
Bidding for large contracts 17
Buyer power and negotiated prices 4, 8
Cartel pricing 5, 6
Collective pricing 3, 7, 8
Cross-subsidisation 16, 17
Differentiated product pricing 12, 13
Financial leverage 17
Interchange fees 7
Parallel trade 9, 11
Price discrimination 1, 4, 9, 11
Raising rivals’ costs (price squeeze) 16, 17
Quantity discounts 1
Rebates 1
Tacit collusion 14, 15
Two-sided market pricing 3, 7, 8
Product practices
Bundling 2, 17
Exclusive territories 9
Incompatibility 2
Product differentiation 12, 13
Selective distribution 9
Tying and exclusive dealing 9, 10, 17
ix Contents by potentially anticompetitive business practices

Business practices Chapters

Investment practices
Location of pipeline 16
Supply reliability 16
Under-investment in capacity 15
Ownership strategies
Conglomerate merger 17
Horizontal merger 12, 13, 14, 15, 17
Long-term contracts 10, 16
Vertical merger 16, 17
Contents by markets

Markets Chapters
Manufacturing
Aircraft engines 17
Avionics and other aircraft components 17
Brewing 10, 13
Cars 9
Graphite electrodes 5
Paper 15
Pharmaceuticals 11
Pre-insulated pipes 6
Tyres 1
Network services
Mobile phone calls 3
Computer operating systems 2
Payment card systems 7
Utilities
Electricity 16
Gas 16
Retail
Car distribution 9
Insurance 12
Package holidays 14
Pubs 10
Supermarkets 4
Sports
Horseracing 8
 List of figures

2.1 The growth of Microsoft’s share in the workgroup server market

1996–2001 page 53
2.2 Leveraging incentives 61
4.1 The virtuous circle of growth for large retailers 123
5.1 Summary of the 1998 EU fining guidelines 144
6.1 Market structure 162
6.2 The frequency of method of estimating overcharges in a survey
of cartel cases 168
6.3 Price index for goods delivered from ABB to two plaintiffs/
municipalities (1999 = 100) 170
7.1 The flows of funds associated with a card payment in a
closed system 181
7.2 The flows of funds associated with a card payment in an open
system 182
7.3 The timing of the model 187
8.1 Trend in betting’s contribution to British horseracing 200
10.1 Conceptual framework of the beer industry 247
10.2 The Delimitis ‘decision tree’ 253
12.1 Market shares: motor and fire insurance segments versus overall
insurance market 296
12.2 Distribution of insurance segments (by number of policies) 296
12.3 Market shares in terms of number of policies versus total amount
of premia 297
12.4 Distribution of insurance segments (by amount of premia) 298
12.5 Average insurance premium (personal, motor, fire, general
liability) 299
12.6 Average commercial margin (personal, motor, fire, general
liability) 299
12.7 Annual claim frequency per firm 301
12.8 Consumer choice 303
xii Figures

13.1 Developments in the UK brewing industry 325

13.2 Predicted markups as a function of the share of the outside good 342
15.1 Real newsprint price, 1990 DEM per tonne 389
15.2 Capacity utilisation, newsprint 391
15.3 Disinvestments in pulp and paper 401
15.4 Annual positive newsprint investment and growth rate of demand 402
16.1 Illustration of the relative competitiveness of different fuels
and present fuel-specific production capacities in Finland with
implications for the creation of a diversified fuel portfolio
in the long run 423
 List of tables

1.1 Scale of quantity rebates, 1995: discount rate offered for a turnover
of up to a certain amount page 33
1.2 Scale of quantity rebates for retreated tyres (1995) 34
3.1 Industry statistics (2002) 78
3.2 Average call charges 78
3.3 Shares of types of mobile calls 79
3.4 Termination charges in March 2001 (pence per minute) 81
3.5 The impact of regulation on termination charges 91
4.1 Market characteristics in UK grocery retailing, 1998/9 105
4.2 Local price flexing by UK grocery retailers, 1998/9 110
4.3 Buying effectiveness of the main grocery retailers, 1998/9 116
4.4 UK supermarket practices concerning relations with suppliers 118
5.1 Market share in graphite electrodes (1998 turnover) 141
5.2 Fines as a percentage of worldwide turnover (2000) 156
A5.1 Category 1 offenders 157
A5.2 Category 2 offenders 158
A5.3 Category 3 offenders 158
6.1 Fines decided by the EC (1998) and later by the Court of First
Instance (2002) 163
6.2 Claims made by four municipalities against three cartel members 166
9.1 Selective versus exclusive distribution 223
9.2 Infringement cases since the first block exemption in 1985 229
10.1 Assessing offsetting benefits 255
10.2 Operation of retail outlets 259
12.1 Statistics on the industry structure 301
12.2 Estimation results 306
12.3a Estimated characteristics of insurance groups 307
12.3b Estimated versus observed markups 308
12.4a Simulated effects of the notified merger (with efficiency gains) 309
12.4b Simulated effects of the notified merger (without efficiency gains) 310
xiv Tables

13.1 Selected international comparisons 322

13.2 Three-firm concentration ratios in 1985 323
13.3 Selected UK beer statistics 323
13.4 National brewer market shares, draught and packaged 329
13.5 IV demand equations 332
13.6 Estimated elasticities: brand averages 333
13.7 Summary of cost estimates 334
13.8 Sensitivity of implicit costs to equilibrium assumptions 334
13.9 Two-step GMM estimates of marginal-cost functions 335
13.10 Predicted equilibrium prices and margins 336
13.11 Merger simulations 337
14.1 Evidence of collusion 372
15.1 Comparing capacities and forecast deliveries before and after
the Enso/Stora merger: average percentage growth rates per
annum in newsprint, 1994–2000 396
15.2 Summary statistics for differenced forecasts 407
16.1 The share of various energy sources in the generation of electricity
in 1996 in Finland 416
16.2 The share of natural gas in electricity generation 1992–6 416
16.3 The choice of heating system in the residential heating market
(one-family houses) in Finland in 1996 428
List of contributors

Mark Armstrong Bruce Lyons

Professor of Economics Professor of Economics
University College London School of Economics
University of East Anglia, and Deputy
Paul Dobson Director of ESRC Centre for
Professor of Competition Economics Competition Policy
The Business School
Loughborough University Peter Møllgaard
Head of Department of Economics
Eliana Garces-Tolon Copenhagen Business School
European Commission
Massimo Motta
Christian Gollier Professor of Economics
Professor of Economics European University Institute
IDEI, University of Toulouse Florence, and University of Bologna

Morten Hviid Damien Neven

Professor of Competition Law Chief Economist
Norwich Law School DG COMP, European Commission
University of East Anglia, and ESRC and Professor of Economics (on leave)
Centre for Competition Policy at HEI Geneva

Marc Ivaldi Patrick Rey

Professor of Economics Professor of Economics
IDEI, University of Toulouse University of Toulouse

Kai-Uwe Kühn Jean-Charles Rochet

Associate Professor Professor of Economics
Department of Economics IDEI, University of Toulouse
University of Michigan
xvi Contributors

Paul Seabright James Venit

Professor of Economics Partner
School of Economics Skadden, Arps, Slate, Meagher & Flom
University of Toulouse LLP, Brussels office

Margaret Slade Frank Verboven

Professor of Economics Professor of Economics
Department of Economics Katholieke Universiteit Leuven and
University of Warwick CEPR

Gianandrea Staffiero Xavier Vives

IESE Business School Professor of Economics and
Barcelona Finance Director of the
Public–Private Sector
Rune Stenbacka Research Center
Professor of Economics IESE Business School
Swedish School of Economics Barcelona
Helsinki, and Göteborg University
Michael Waterson
Andreas Stephan Professor of Economics
Lecturer in Law Department of Economics
Norwich Law School University of Warwick
University of East Anglia, and ESRC
Centre for Competition Policy Julian Wright
Associate Professor of Economics
John Van Reenen National University of Singapore
Professor of Economics
Department of Economics
London School of Economics and
Director of Centre for Economic
Performance
Preface

Competition between firms is usually the most effective way of delivering

economic efficiency and what consumers want. However, there is a balance to
be struck. Firms must not be over-regulated and so hampered in their devel-
opment of innovative products and new strategies to compete for customers;
but nor must they be completely free to satisfy a natural preference for
monopoly, which would give them higher profits and a quieter life. The
economic role of competition policy is to maintain this balance, and an
effective policy requires a nuanced understanding of the economics of indus-
trial organisation.
The seed of an idea for this book was first sown in 1989 after an editorial
board meeting of the Journal of Industrial Economics when Larry White
kindly gave me a copy of his new book, co-edited with John Kwoka: The
Antitrust Revolution. That book, now entering its fifth edition, was to become
a classic publication in the field because it showed how economics was
being used very practically by leading American academics in US antitrust
(i.e. competition policy) cases. While this may have been revolutionary at the
time, as the reader will see, the application of well-argued and finely tuned
economic analysis in competition cases has long since crossed the Atlantic.
Competition policy has come out of the legal closet.
This book demonstrates how economics is used (and sometimes abused) in
competition cases across Europe. It also aims to show how the use of econom-
ics in case analysis can be improved. Each chapter summarises a real case
investigated by either the European Commission or a national authority in
Europe, and provides a critique of key aspects of the economic analysis. The
style is largely non-technical so as to be accessible to lawyers, practitioners and
economics undergraduates and advanced undergraduates (for whom it pro-
vides a supplementary text for a course in industrial organisation). The book is
arranged in three parts that reflect the main elements of competition policy
familiar to lawyers. A supplementary table of contents provides a guide for
those who wish to use the book to illustrate economic concepts, business
xviii Preface

practices or the operation of particular markets. I have also written an

introduction which provides a wider context for understanding the role of
competition policy in twenty-first-century Europe.
The book is written by an outstanding team of Europe’s leading industrial
economists. Each lead author has been a senior adviser for either a competi-
tion agency or firms being challenged under competition laws, or both.
However, each is first and foremost an independent academic economist,
teaching and researching in a highly rated university. Most advised on the case
they analyse in this book, and where this is the case it is made clear in the first
footnote. Of course, where payment has been taken, the reader may think that
the author’s analysis is compromised. However, despite a little understandable
advocacy here and there, I do not believe there is any bias in the essential
analysis presented here. Apart from inherent academic integrity, this is
because their economics is laid bare by publication and the authors are putting
their substantial economic reputations on the line by contributing to this book.
I would like to thank all the authors, some of whom have shown amazing
patience in waiting for the project to be completed, Steve Davies for editing
Chapter 5, and Larry White and John Kwoka for their blessing for this
European complement (and indeed compliment) to their American project.
Cheryl Whittaker provided her usual excellent editorial assistance in CCP and
thanks also to the CUP team of Chris Harrison and Philip Good. The support
of the Economic and Social Research Council in funding time for editing this
book is gratefully acknowledged.
Finally, I dedicate this book to the memory of my father, Philip, who would
have relished both the content and the pan-European collaboration embodied
in this project.

BRL
ESRC Centre for Competition Policy, University of
East Anglia, Norwich
July 2008
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