Antitrust and Competition

NERA experts advise clients in defending against damages claims as well as in supporting such claims in connection with breaches of European or national competition rules, in particular Articles 101 or 102 TFEU and corresponding national legislation. In determining possible damage, NERA employs state-of-the-art economic and econometric methods to build realistic counterfactual scenarios. Our reports and testimony are submitted in proceedings before national courts in the context of follow-on actions for damages, and are used for out-of-court settlements or for informal assessments of claims for damages.

NERA economists provide advisory services at all stages of the merger process, from pre-notification merger planning through Phase 1 and, if necessary, Phase 2 of European or national merger review processes. NERA’s experts provide robust market definition analysis; address questions related to horizontal and non-horizontal theories of harm, coordinated and non-coordinated effects, and conglomerate effects; and analyze the likelihood of merger-specific efficiencies.

Firms with a dominant position in a market face certain restrictions under competition law with respect to their business practices. NERA advises clients in abuse of dominance investigations begun by national competition authorities or the European Commission, and on how to structure their business practices and strategies in order to pre-empt violations of competition law. NERA’s competition experts provide advice regarding the full range of possible abuses, including excessive prices, predatory pricing, price discrimination, margin squeeze, refusal to supply, discounts and rebates, and tying and bundling.

A robust (product and geographic) market definition is often key for subsequent legal and economic analysis, be it in merger cases, for cartels, in assessing dominance, or in state aid cases. In analysing the relevant market, NERA experts employ the SSNIP test in the context of the industry in question, and draw on their substantial expertise in econometric analysis to employ accepted methods for market definition, including critical loss analysis, price correlation analysis, price concentration analysis, trade flow and transport cost analysis, and assessment of price and cross-price elasticities.

NERA has extensive experience evaluating allegations of price fixing, bid rigging, customer and geographic allocation, buyer cartels, parallel pricing, information exchanges, and other collusive behaviour. Our competition experts conduct economic analysis of horizontal business agreements and joint ventures, assess whether these are likely to be found to materially restrict competition and, if so, whether they are instrumental in creating efficiencies that are subsequently passed on to consumers.

Economics plays a central role in the assessment of vertical agreements between firms at different levels of the supply chain. NERA experts have experience in assessing non-linear pricing, resale price maintenance, territorial restrictions, exclusive dealing, and refusal to deal, as well as the likely effects of vertical agreements on efficiency.

In the EU and in many national jurisdictions, competition authorities have the power to investigate an entire market or sector, assess its functioning, and identify possible competition concerns. NERA experts frequently work with companies during these investigations in order to streamline the process and allow the clients to benefit from our extensive data management expertise. Our experts have broad experience in addressing information requests, carrying out empirical analyses, assessing and responding to economic analyses undertaken by competition authorities, and developing economic reports where required.

Economic analyses and evidence is critical in state aid analysis. NERA provides expert advice and assistance to companies in different sectors, and to government institutions on a range of state aid-related aspects. These include the assessment of state measures under the Market Economy Investor Principle, market definition, identification of market failures that might justify state aid, assessment of competitive effects, and the incentive effect of aid and its proportionality, as well as of the risk of competitive distortions.

Economic analysis and evidence plays an increasingly important role in international trade disputes. NERA experts advise companies and legal advisors in anti-dumping cases, regarding subsidies and countervailing duties, and trade injury analysis with quantitative analyses of the effects of respective practices, and with the assessment and analysis of relevant firm and market data to address injury and causation. In particular, NERA supports clients in collecting relevant data and in developing the necessary economic evidence in the context of unfair trading practices claims and commercial disputes.

NERA has extensive experience in working on issues at the intersection of antitrust and intellectual property law. Our experts prepare economic analyses for litigation and regulatory proceedings involving the use and abuse of standard setting, licensing and patent extension, mergers with intellectual property issues, damages assessments, and patent settlements.