We have provided clients with economic advice in cases spanning the spectrum of competition law and related areas of commercial litigation. We have worked in a wide variety of economic sectors and in numerous European jurisdictions.
ASICS - selective distribution and online sales
“E.CA Economics made a substantial contribution in an important and complex area, and I am very impressed with their work. With e-commerce growing steadily the results of E.CA’s study are timely and relevant for the future.”
ASICS appeal against FCO decision regarding distribution agreements
On 26 August 2015, Germany’s Federal Cartel Office (FCO) ruled that certain provisions of ASICS’ selective distribution system relating to online advertising violated competition law. ASICS appealed this decision at the Dusseldorf Regional Court of Appeals, which confirmed the FCO decision in April 2017. E.CA Economics provided economic assistance to ASICS by identifying and substantiating the potential efficiencies of the company’s online-advertising provisions, which were related to free-rider problems and brand-image protection. For example, one of the provisions barred authorised distributors from providing support to price-comparison websites. At the time the new distribution system was implemented, price-comparison websites generally had limited functionality and poor privacy and consumer-protection standards. Some customers had reported that they had been misled regarding purchases. The appearance of a company’s products on these websites thus carried a serious risk of harm to the brand’s image. Although the Dusseldorf Court confirmed the FCO decision, a broader debate has emerged in Europe regarding vertical restraints in the context of online sales.
ESBR/BR damages compensation
“I was impressed by E.CA’s analytical competence and ability to apply rigorous economic analysis in a complex legal environment. E.CA’s analysis and evidence were crucial to the ultimate settlement of this long-lasting damages case.”
ESBR/BR damages compensation
The case dates back to 2006, when the European Commission fined rubber manufacturers including Dow, ENI, Shell and Bayer more than €500 million for price-fixing over a period of six years. E.CA Economics supported a coalition of leading tyre manufacturers who were claiming damages in English courts as direct customers of the ESBR/BR (types of synthetic rubber) cartel. One of E.CA’s directors, supported by a team of economists from both E.CA and our US partner Bates White, acted as an economic expert in the English High Court. Based on time-series econometric techniques, overcharges were estimated and tyre costs and price data were examined to assess whether and to what extent overcharges were passed on. After intensive negotiations and a court action that spanned over a period of more than seven years, the litigation ended by settlement.
Merger of Holcim and Lafarge
“E.CA’s economists are very proactive, creative and professional. Their capabilities in handling, within the short deadlines of merger proceedings, vast amounts of data and translating complex economics into relevant analysis is unrivalled. E.CA’s excellent strategic guidance and advice was key for winning the EU Commission’s support for this global transaction.”
Merger of Holcim and Lafarge (EC Case Number M.7252).
In 2015, Holcim of Switzerland merged with Lafarge of France to become the world’s largest cement producer, with operations in 90 countries. E.CA Economics assisted the merging parties through the course of the regulatory proceedings in Europe and in various non-European countries like Indonesia and Brazil. The merger impact assessment focussed strongly on the geographic scope of competition, since most construction materials are sold within a relatively short distance from the manufacturing site. The European Commission ultimately cleared the merger, despite its complexity, in Phase I on a conditional basis, ordering the implementation of a package of divestments encompassing multiple countries and including various assets.
Acquisition of E-Plus by Telefónica Deutschland
“In the Telefónica/E-Plus merger proceeding, E.CA Economics managed several complex workstreams in parallel. Despite the workload, they impressed us with sophisticated, comprehensive and timely economic analysis and expert reports that conveyed the ideas in an accessible and convincing manner to the European Commission.”
Acquisition of E-Plus by Telefónica Deutschland (EC Case Number M.7018)
In July 2014 following an in-depth investigation, the European Commission conditionally approved Telefónica Deutschland’s proposed acquisition of German mobile telecommunications business E-Plus, at that time owned by the Dutch company KPN. The Commission’s main concern was that the merger would eliminate competition between two rival firms, thus removing important competitive forces from Germany’s mobile telecommunications market. An additional concern was that the merger would further weaken the position of mobile virtual network operators (MVNOs) and service providers. Drawing on its substantial experience in the telecommunications sector, E.CA Economics carried out detailed economic and econometric analyses for the merging parties in various areas, including closeness of competition, diversion ratios, upward pricing pressure and operational efficiencies.
Ex-post evaluation of State aid measures
“Communicating sound economics, linking it properly to the legal context and delivering novel but robust recommendations for implementation to the ministry – E.CA performed on all of these dimensions of this interdisciplinary research project. In fact, it was fun working together!”
Environmental State aid – study for the German ministry on ex-post evaluation
The EU Commission recently introduced new obligations for the ex-post evaluation of State aid schemes for member states. To prepare for upcoming submissions to the Commission, the German Federal Ministry for the Environment and the associated Environmental Agency engaged E.CA Economics and the law firm Redeker Sellner Dahs for an interdisciplinary research project on ex-post evaluations of environmental aid. To assess the probability with which the Commission would request an ex-post evaluation of an environmental State aid scheme, the team designed a novel warning system. Moreover, a roadmap helping to steer the organisation, scope and timing of an ex-post evaluation by the ministry was developed. The most important methodical issues when carrying out an ex-post evaluation were explained using examples of environmental aid schemes. The legal analysis included the data-protection framework for upcoming ex-post evaluations.
The rapid growth of the digital economy continues to be felt across the entire economy. Some of today’s largest firms are Internet companies. However, even traditional firms have had to respond to the changes brought about by the digital transformation.
E.CA Economics has extensive experience in competition cases related to the digital economy, having worked for Internet companies and traditional firms alike.
- HRS hotel booking (abuse of dominance)
- Google Shopping (abuse of dominance)
- ASICS (selective distribution)
- Immowelt/Immoweb (real estate platform merger)
- RTL/ProSiebenSat1 (video on demand platform joint venture)
- Google/DoubleClick (merger)
- TomTom/TeleAtlas (merger)
Information & communications technology
Information and communications technology (ICT) refers to all technical means used to process information and facilitate communication. This includes computer and telecommunications-network hardware and software.
E.CA economists have worked on telecommunications mergers and in other competition- and regulation-related practice areas, giving us considerable experience with the range of competition-economic issues relevant to the ICT sector.
- Telefónica Deutschland/E-Plus (EC merger Phase II)
- H3G/O2 Ireland (EC merger Phase II)
- Liberty Global/Kabel Baden-Württemberg (FCO merger)
- Slovak Telekom (EC margin-squeeze investigation)
- Oracle/Sun Microsystems (EC merger)
- Arbitration proceedings relating to access contracts
- White papers for Deutsche Telekom on the sustainability of future business models and on the relationship between entry regulation and investment in the telecommunications sector
- Smart card chip cartel: support to Infineon AG, market definition and effects analysis, defendant side, EU administrative proceedings and private litigation
Transportation and automotive
The transportation and automotive sector includes public transport services such as railways and regional bus systems, as well as new-vehicle production and automotive-parts supply chains.
E.CA Economics has performed wide-ranging competition-analysis work within Germany’s automotive and automotive supply industries. We have worked on most of the country’s major automotive-sector cartel cases, participating in proceedings before competition authorities as well as in the calculation of damages.
- Cartel litigation: trucks, bearings, fire engines, acoustic and thermal isolation products, vehicle glass
- Mergers: Federal Mogul/Honeywell Friction Materials, Horizon/Brink, Ingersoll-Rand/Frigoblock, Air Berlin/TUI
- Abuse of dominance: predatory pricing allegation in the rail passenger transportation industry
- State aid: Leipzig airport, Deutsche Bahn
Manufacturing and construction
Manufacturing refers to the production and sales of industrial goods in B2B businesses, while construction encompasses a range of products and services, including the production and sales of building materials such as cement, concrete, plasterboard and copper tubes, as well as large construction and infrastructure projects.
E.CA Economics has worked for numerous leading global suppliers in this area, giving it broad experience within the sector.
- Mergers: HeidelbergCement/Italcementi, Knauf/Armstrong, Owens Corning/Ahlstrom, RHI/Magnesita, Xella/H+H, Cordes & Graefe/Wilhelm Gienger, Knorr Bremse/Vossloh
- Cartel litigation: gas insulated switchgear in Germany and the Netherlands, elevators and escalators, industrial tubes
- State aid: Airbus Helicopters
- Horizontal agreements: rolled asphalt industry, cement, chemical compounds
Retail and consumer goods
Our work in the retail sector has included merger advice, assessment of abuse of dominance and buying-power issues as well as the assessment of distribution systems (vertical agreements). In the consumer goods industry we have carried out projects in both the durable and non-durable goods fields, involving both unbranded and branded products (fast-moving consumer goods).
- Mergers: EDEKA/Kaiser’s Tengelmann, AirBerlin/TUI, OMV/FE-Trading, Funke Mediengruppe/Axel Springer, Immowelt/Immonet, RTL/ProSiebenSat1, Vattenfall/Nuon
- Cartel litigation: several cartel cases related to branded products like KWR, washing detergents, coffee, cookies, flour, beer. Empirical analyses of price, cost, margin and revenues data during and after the alleged infringement period. Overcharge and pass-on analysis, defendant side, German court proceedings
- Vertical agreements: ASICS’ selective distribution system in Germany and several others
Pharmaceuticals and medical devices
The pharmaceutical and medical device sectors depend strongly on R&D, with various forms of intellectual property playing a vital role. E.CA Economics has considerable experience in the areas of competition policy enforcement that are most relevant to these sectors, including merger control, abuse of dominance assessment and analysis of regulatory frameworks and agreements.
- GN Store/Phonak: advised GN Store, a supplier of hearing aids, following the German Federal Cartel Office’s prohibition of its proposed merger with Phonak; in 2009, the highest German court confirmed E.CA’s assessment and overturned the FCO decision
- Medical products: carried out analysis of dominance concerns, market-foreclosure issues and potential market efficiencies
- Licensing review for a pharmaceutical company: analysed the competitive impact of an interpretation of certain types of licence agreements on technological competition
- White paper: quantitative and theoretical analysis of the effect of pricing and reimbursement regulation on pharmaceutical innovation for Novartis
The financial sector encompasses banking, insurance and transactional activities such as payment card services. E.CA Economics has provided economic advice to clients engaged in mergers, State aid and abuse of dominance cases. Additional work has addressed the two-sided market effects of interchange fees in payment card systems.
- SIX payment cards/PayLife: carried out a full merger assessment for the merging parties, focussing on the card-issuing, -acquiring and -processing segments
- Visa/Mastercard interchange fees: pass-on analysis for a group of retailers (private litigation), UK Court proceeding
- State aid in the banking sector: assessed capital injections into state-owned banks
Energy and raw materials
While the liberalisation of electricity and gas markets in Europe has reshaped the energy sector, generic competition rules continue to play a significant economic role. E.CA has advised many clients in this area, as well as those engaged in the manufacturing of primary and secondary raw materials.
- EnBW/MVV: Acquisition of minority share by EnBW in MVV. E.CA defined the relevant market for waste incineration, taking into account the regulatory framework, in particular the “Principle of Autarky”. Moreover, E.CA applied an upward pricing pressure (UPP) analysis in the context of bidding markets and minority shareholding and presented the results to the FCO.
- For a large European copper producer, E.CA carried out a feasibility study for the merger, assessing the horizontal and vertical effects of each possible combination of competitors
- Liquid petroleum gas (LPG) retailers: E.CA advised Austrian clients in the context of a market investigation being carried out by the Austrian competition authority
- CO2 certificates: we analysed the economic rationale for the pass-through of costs associated with CO2 certificates in the German electricity sector
Austrian Energy & Environment
Copenhagen Airports A/S
European Round Table of Industrialists (ERT)
Gadot Biochemical Industries
GN Store Nord
Mediengruppe RTL Deutschland
Mineralölwirtschaftsverband e.V. (MWV)
Mitteldeutsche Flughafen AG
Potasse & Produits Chimiques
Pratt & Whitney
SIX Card Solutions
Allen & Overy
Alston & Bird
Arnold & Porter
Baker & McKenzie
Cleary Gottlieb Steen & Hamilton
CMS Hasche Sigle
Covington & Burling
Crowell & Moring
De Brauw Blackstone WestBroek
Dolde Mayen & Partner
Eisenberger & Herzog
Freshfields Bruckhaus Deringer
Gide Loyrette Nouel
Haver & Mailänder
Latham & Watkins
McDermott, Will & Emery
Shearman & Sterling
Skadden, Arps, Slate, Meagher & Flom
Van Bael & Bellis
White & Case