How we can help

Navigating the often complex economic questions raised by competition and regulatory work is a challenge. Our analytical background as experienced economists and our understanding of the specific context within which competition and regulatory issues arise helps us to develop coherent and persuasive economic arguments which are the foundation of good outcomes for our clients.

Our experience and expertise extends across the full range of issues arising in competition, regulation, and related commercial litigations and disputes.

Our expertise includes the following areas: Abuse of Dominance, Arbitration and Litigation, Cartels and Horizontal Agreements, Damage Quantification, Market Definition, Merger Control, Regulatory Issues and Market Reports, Sector Inquiries and Market Investigations, State Aid, Vertical Agreements

Abuse of Dominance


Our experience in abuse of dominance cases under Article 102 TFEU or corresponding national competition law provisions spans both exclusionary and exploitative abuses. The team can draw on an exceptionally extensive experience in such cases from within the European Commission, including on the review of Article 102, the OECD and as economic consultants.

The issues we dealt with concerning foreclosure and exclusionary conduct include exclusive dealing, for example exclusive purchasing and conditional rebates, tying and bundling including multi-product rebates, exclusionary rebates, refusal to supply, price and non-price predation, and margin squeeze. The team has also experience regarding exploitative abuses including excessive prices.

C.-Philipp Heller, Heiner Lindenlaub & Frank Maier-Rigaud (2020) Exclusionary Bundle Discounts: A Simple Model with two Applications, Economics Bulletin, 40(1), 210-216.

Schwalbe, Ulrich (2019) Market definition in the digital economy: An overview of EU and national case law, Concurrences, October 2019.

Maier-Rigaud, Frank P., Blalock, Nathan & Oliver Gannon (2019) Reverse Payments: An EU and US Perspective, in: Figueroa, P. & A. Guerrero (eds.) EU Law of Competition and Trade in the Pharmaceutical Sector, Edward Elgar, Cheltenham, 35-108.

Schwalbe, Ulrich (2017), Antitrust Compliance and Abusive Behaviour, in: Paha, J. (ed.) Competition Law Compliance Programmes, Springer Verlag, Heidelberg, 103-120.

Schwalbe, Ulrich & Frank P. Maier-Rigaud (2012) Market Definition, OECD Best Practice Roundtables in Competition Policy, June.

Maier-Rigaud, Frank P., Federica Manca & Ulrich von Koppenfels (2011) Strategic underinvestment and gas network foreclosure - The ENI case, EC Competition Policy Newsletter, Directorate General Competition, European Commission, 1, 18-23.

Maier-Rigaud, Frank P. (2011) Excessive Prices, OECD Best Practice Roundtables in Competition Policy, October.

Adam, Michael & Frank P. Maier-Rigaud (2009) The Law and Economics of Article 82 EC and the Commission Guidance Paper on Exclusionary Conduct, Journal of Competition Law (ZWeR - Zeitschrift für Wettbewerbsrecht), 1, 131-146.

Maier-Rigaud, Frank P. (2006) Article 82 Rebates: Four Common Fallacies, European Competition Journal (Special Edition on Article 82), 2(2), 85-100.

Maier-Rigaud, Frank P. & Dovile Vaigauskaite (2006) Prokent/Tomra, a textbook case? Abuse of dominance under perfect information, EC Competition Policy Newsletter, Directorate General Competition, European Commission, 2, 19-24.

Maier-Rigaud, Frank P. (2005) Switching Costs in Retroactive Rebates - What's Time got to do with It?, European Competition Law Review (ECLR), 26(5), 272-276.



Arbitration and Litigation


We provide the full range of economic arbitration and litigation support. This includes determining how claims can be countered or supported and identifying the correct approaches to evaluating claims.

Our expert testimonies have been part of national and international arbitration procedures. For example, in American Arbitration Association (AAA), Deutsche Institution für Schiedsgerichtsbarkeit (DIS) and International Chamber of Commerce (ICC) procedures. We have also provided economic support and expert testimony in litigation proceedings before national courts in France, Germany, the UK and the Netherlands.

The cases we worked on involved various breaches of competition law, patent and IP disputes, for example in the pharmaceutical industry, contractual disputes, and regulatory questions, for example in energy, among other aspects. Often our economic reports were also instrumental in reaching out-of-court settlements.

 

Cartels and Horizontal Agreements


We have prepared submissions and relevant analyses in many cartel and horizontal agreement cases, including on joint ventures on EU and national level notably in Germany and France. We have notably worked on some of the most prominent Article 101 cases on the EU level regarding mobile networks, but also concerning the automotive sector.

Given the increasing importance of damage claims following cartel findings of competition authorities and the inherent efficiency of involving economists early on, we have increasingly been active also in the administrative procedures leading up to such cartel decisions. For more information on the quantification of damage, see also the section on damage quantification.

Below is a selection of publications:

Schwalbe, Ulrich (2019) Algorithms, Machine Learning, and Collusion, Journal of Competition Law and Economics, 14(4), 568-607.

Podszun, Rupprecht & Ulrich Schwalbe (2017), Zulässigkeit von Pressekooperationen in der 9. GWB-Novelle: Eine juristische und ökonomische Analyse, Zeitschrift für Urheber- und Medienrecht, 61(4), 339-346.

Friederiszick, Hans & Frank P. Maier-Rigaud (2008) Triggering Inspections Ex Officio: Moving Beyond a Passive EU Cartel Policy, Journal of Competition Law and Economics, 4(1), 89-113.

Friederiszick, Hans & Frank P. Maier-Rigaud (2007) The Role of Economics in Cartel Detection in Europe, in: D. Schmidtchen, M. Albert & S. Voigt (eds.), The More Economic Approach in European Competition Law, Mohr Siebeck, Tübingen, 179-196.

Maier-Rigaud, Frank, C.-Philipp Heller & Philip Hanspach (2019) Zur Weiterwälzung von Preisaufschlägen, Journal of German and European Competition Law (WuW, Wirtschaft und Wettbewerb), 69(11), 561-568.

Maier-Rigaud, Frank P., Marc Ivaldi & C.-Philipp Heller (2020) Cooperation Among Competitors: Network Sharing Can Increase Consumer Welfare, SSRN working paper.

Cojoc, Anca, Marc Ivaldi, Frank P. Maier-Rigaud & Oliver März (2020) Horizontal Cooperation on Investment: Evidence From Mobile Network Sharing, CERP Discussion Paper No. DP14770.



Damage Quantification


The quantification of damage in the context of damages claims has become an important element of competition work. In cartel cases, damages actions typically follow in the wake of the administrative procedure in front of a competition authority. We have authored well over 100 damage quantification reports in the last few years and acted as expert witnesses in numerous litigation matters, presenting economic evidence and being cross-examined before courts and tribunals.

Based on this experience, we provide clients with rigorous and credible analyses that seamlessly complement the legal line of argument and have frequently made the difference for clients in their proceedings.

Our experience and our analytical rigour as empirical and theoretical economists, together with our extensive publication record and the trainings for judges we have given, ensure our credibility and strong performance when  explaining our findings or when under cross examination in court.

Below is a selection of publications:

Maier-Rigaud, Frank (2020) Auf dem Holzweg: Zu Streuschäden, Betroffenheit und Zurechnung im Rahmen von Schadensersatzklagen, Journal of German and European Competition Law (WuW, Wirtschaft und Wettbewerb), 70(2), 62-64.

Maier-Rigaud, Frank, C.-Philipp Heller, & Philip Hanspach (2019) Zur Weiterwälzung von Preisaufschlägen in regulierten Industrien, Neue Zeitschrift für Kartelrecht (NZKart), 12/2019, 650-658.

Maier-Rigaud, Frank P. & Slobodan Sudaric (2019) The Difference-in-Differences Approach in the Estimation of Cartel Damage, CPI Antitrust Chronicle, 3(1), 1-7.

Inderst, Roman, Frank P. Maier-Rigaud & Ulrich Schwalbe (2019) Quantifizierung von Schäden durch Wettbewerbsverstöße, in: Andreas Fuchs and Andreas Weitbrecht (eds.) Handbuch Private Kartellrechtsdurchsetzung, C.H. Beck, München, 287-332.

Maier-Rigaud, Frank P. & Ulrich Schwalbe (2018) Quantification of Antitrust Damages, in: David Ashton (ed.) Competition Damages Actions in the EU: Law and Practice (with an Economics Contribution by Frank Maier-Rigaud and Ulrich Schwalbe), 2ndedition, p.401-465, Edward Elgar 2018.

Schwalbe, Ulrich (2017) Lucrum Cessans und Schäden durch Kartelle bei Zulieferern, Herstellern von Komplementärgütern sowie weiteren Parteien, Neue Zeitschrift für Kartellrecht, 5, 157-164.

Maier-Rigaud, Frank P. (2017) Damages Regimes on Both Sides of the Atlantic – An Economic Critique, The Antitrust Bulletin, 62(2), 334-347.

Maier-Rigaud, Frank P., Christopher Milde & Peter Bönisch (2016) Quantification of Damage on Both Sides of the Atlantic: What are the Differences?, Chapter 13, 185-203 in: James A. Keyte (ed.), International Antitrust Law & Policy: Fordham Competition Law 2015, Fordham University School of Law.

Inderst, Roman, Frank P. Maier-Rigaud & Ulrich Schwalbe (2014) Preisschirmeffekte, Journal of German and European Competition Law (WuW, Wirtschaft und Wettbewerb), 64(11), 1043-1056.

Inderst, Roman, Frank P. Maier-Rigaud & Ulrich Schwalbe (2014) Umbrella Effects, Journal of Competition Law and Economics, 10(3), 739-763. [Nominated for the 2014 Concurrences Antitrust Writing Awards]

Maier-Rigaud, Frank P. (2014) Toward a European Directive on Damages Actions, Journal of Competition Law and Economics, 10(2), 341–360.

Maier-Rigaud, Frank P. (2014) Umbrella Effects and the Ubiquity of Damage Resulting from Competition Law Violations, Journal of European Competition Law and Practice, 5 (4), 247-251.

Maier-Rigaud, Frank P. & Ulrich Schwalbe (2013) Private Enforcement under EU Law: Abuse of Dominance and the Quantification of Lucrum Cessans, CPI Antitrust Chronicle, 11(2), 1-11.



Market Definition


The traditional starting point in the analysis of competition problems, but also in many regulatory matters, is the definition of the relevant market. The definition of the relevant market is typically based on the hypothetical monopolist test taking relevant supply and demand-side substitutability into account.

The goal of market definition is the identification of all relevant competitive factors, including the identification of all relevant substitute products on the demand side, all possibilities of (short-term) supply-side substitution, the relevant competitors, but also the geographic extent of the market. Under certain circumstances it is possible to objectify the hypothetical monopolist test by conducting an empirical SSNIP-test. The SSNIP-test examines whether a profit maximizing hypothetical monopolist would implement a small, but significant, non-transitory increase in price of at least 5-10% above the competitive price level. Based on the smallest possible product and geographic candidate market, product and geographic substitutes are added to the market. The relevant market is the smallest candidate market for which such a price increase is profit maximizing. In the last few years alternatives to market definition were discussed notably for markets with differentiated products and price competition (see notably Schwalbe & Maier-Rigaud (2012) and the rest of the documentation of this OECD session for which the background note was written). Based on pricing pressure indices such as the upward pricing pressure (UPP) or the gross upward pricing pressure index (GUPPI), merger effects can directly be assessed.

In addition to our experience in conducting and assessing market definitions at the European Commission, our team also has substantial expertise in conducting empirical SSNIP-tests in a wide range of merger and abuse of dominance cases. This includes cases of the toothless- as well as the cellophane fallacy. In addition, we have applied market definition in several regulatory matters, for example in the context of SMP-tests (significant market power) or more generally in arbitration cases, where we have also encountered more complex scenarios involving for instance pipeline networks.

Below is a selection of publications:

Schwalbe, Ulrich & Daniel Zimmer (2021) Kartellrecht und Ökonomie, 3rd. ed., Deutscher Fachverlag, forthcoming.

Schwalbe, Ulrich (2019) Market definition in the digital economy: An overview of EU and national case law, Concurrences, October 2019.

Schwalbe, Ulrich & Rupprecht Podszun (2017) Digitale Plattformen und GWB-Novelle: Überzeugende Regeln für die Internetökonomie? Neue Zeitschrift für Kartellrecht, 5(3),98-106

Schwalbe, Ulrich & Frank P. Maier-Rigaud (2012) Market Definition, OECD Best Practice Roundtables in Competition Policy, June.

Schwalbe, Ulrich (2012) Market Definition in Technologically Dynamic Markets - An Example from Mobile Telecommunications in: Krämer, H.M., H. Kurz, H.-M. Trautwein (eds.), Macroeconomics and the History of Economic Thought - Festschrift in Honour of Harald Hagemann (with T. Arnold), London.



Merger Control


Modern merger review necessitates economic and econometric analysis. On the empirical side, the European Commission and an increasing number of other authorities require the production and analysis of substantial amounts of data. On the theoretical side, theories of harm need to be developed, carefully dissected and, to the extent useful, thoroughly refuted. Our experience allows us to support clients from initial regulatory risk assessment stages, through all steps of the notification process to the final clearance.

We have worked on many phase I and phase II EU and national merger cases, notably in France, Germany and he UK. We have won awards for our merger work such as the Merger Control Matter of the Year award by GCR in 2016 relating to our work on the European Commission GE/Alstom case, concerning the acquisition of General Electric of Alstom’s power and grid business.

From within the European Commission and also from outside the authority as consultants, we have analysed and assessed competition concerns raised through both, potential horizontal and potential vertical effects, as well as less common non-traditional effects for example due to capacity constraints as analysed in the context of the European Commission BASF/Solvay Polyamide transaction.

In addition to supporting the notification process, we have assisted in the planning stages of potential transactions and consulted on regulatory risks prior to transactions being concluded. As part of these risk assessments or in the context of ensuing merger filings, we have also helped construct or assess remedies packages that mitigated competition concerns raised.

Maier-Rigaud, Frank P. & Nicola Tosini (2020) Mergers between Backward Integrated Firms: Insights from BASF/Solvay’s Polyamide Business, Journal of European Competition Law & Practice, 11(1-2), 82-89.

Heller, C.-Philipp, Heiner Lindenlaub & Frank Maier-Rigaud (2020) Exclusionary Bundle Discounts: A Simple Model with two Applications, Economics Bulletin, 40(1), 210-216.

Lörtscher, Benjamin & Frank P. Maier-Rigaud (2020) On the Consistency of the European Commission's Remedies Practice, 53-72, in: Gerard, Damien & Assimakis Komninos (eds.) Remedies in EU Competition Law - Substance, Process and Policy, Wolters Kluwer.

Schwalbe, Ulrich (2018) Common Ownership and Competition – The Current State of the Debate, Journal of European Competition Law and Practice, 9(9), 596-603.

Maier-Rigaud, Frank P., Ulrich Schwalbe & Felix Forster (2016) The Role of Non-Coordinated Effects in the Assessment of Minority Shareholdings, Journal of Competition Law (ZWeR), 14(3), 246-257.

Maier-Rigaud, Frank P. (2016) Behavioural versus Structural Remedies in EU Competition Law, chapter 7, 207-224, in: Philip Lowe, Mel Marquis and Giorgio Monti (eds.), European Competition Law Annual 2013, Effective and Legitimate Enforcement of Competition Law, Hart Publishing.

Maier-Rigaud, Frank & Ulrich Schwalbe (2015) The European Commission's Decision in Telefónica Deutschland/ E-Plus, Wirtschaft und Wettbewerb, 07/08, 733-736.

Schwalbe, Ulrich & Frank P. Maier-Rigaud (2012) Market Definition, OECD Best Practice Roundtables in Competition Policy, June.

Maier-Rigaud, Frank P., Daniel Wiesen & Kay Parplies (2008) Experimental Economics and Competition Policy: Unilateral and coordinated effects in competition games, European Competition Law Review (ECLR), 29(7), 408-417.

Maier-Rigaud, Frank P. & Kay Parplies (2009) EU Merger Control 5 Years after the Introduction of the SIEC Test: What explains the drop in enforcement activity? European Competition Law Review (ECLR), 11, 565-579.



Regulatory Issues and Market Reports


Competition economics increasingly matters for the regulation of specific industries. Our expert economists have substantial experience in preparing economic evidence in the telecommunications, postal, gas, railway, and electricity sectors. We have also supported sector regulators in regulatory reform processes and provided benchmarking and good practice support to companies in litigation or arbitration procedures.

Outside of providing specific support to clients in the context of regulatory or arbitration cases we have also provided general background reports on several industries including for example hospitals, data centres and pharmaceuticals. We have also worked on issues such as traffic management and network neutrality.

Below is a selection of publications:

Maier-Rigaud, Frank (2019) Dekarbonisierung für Anfänger: Wie das europäische Zertifikatesystem zu retten wäre, Wirtschaftsdienst, 99(10), 731-735.

Maier-Rigaud, Frank, Christopher Milde & André Selke (2015) Economics of the Interconnection Data Centre (IDC) Industry.

Maier-Rigaud, Frank (2012) Competition in Hospital Services – The Policy Dimension, Organisation for Economic Co-operation and Development Working Party No. 2.

Maier-Rigaud, Frank (2012) Traffic Management: The Respective Roles of Competition Law and Regulation, CPI Antitrust Chronicle, Vol. 2, March 2012.

Maier-Rigaud, Frank (2011) Network Neutrality: A Competition Angle, Competition Policy International, Vol. 2, August 2011.



Sector Inquiries and Market Investigations


Our experts have supported companies in the context of market investigations and sector inquiries conducted by the European Commission and national authorities such as the UK CMA. We help firms directly affected by the inquiry as well as other interested parties in answering requests from the regulators and presenting the relevant evidence in an effective way.

Sector inquiries require process and data handling experience to be able to coordinate the typically substantial information requests of the competition authority. Ensuring deadlines are met while relevant information is filtered and identified to allow the preparation of accompanying arguments and explanations is key to help the client navigate the inquiry effectively. This includes hands-on support to keep the distractions this causes on the company level to a minimum.

We have provided support to clients allowing them to raise concerns, for instance drawing attention to regulatory impediments in a market or practices of competitors, but have also worked for clients to ensure that empirical data is properly presented and does not give a misleading view of the industry.

A member of our team was responsible for the sector inquiry tool of the European Commission and has led and coordinated various sector inquiries on the EU level including in financial services, in the pharmaceutical sector and in energy. We have also worked on the UK Energy Market Investigation.



State Aid


State aid has become a central concern of the European Commission in the wake of the financial crises, but also following the Covid-19 pandemic.

Our experts have actively supported different public bodies and firms across several sectors in the area of State aid, ranging from the health care sector to transport and financial services. The more economic approach in competition law has also been applied to state aid and helped invigorating this instrument. This led to an increased role for economic analysis in the assessment of state aid measures. Some of the relevant economic questions arising in the context of state aid include a standard assessment of competitive effects, but also the conformity of state investments with the Market Economy Investor Principle and the design of appropriate remedies counterbalancing any possible effects identified.

Below is a selection of publications:

Schwalbe, Ulrich (2017), Economic Principals of State Aid Control, in: Heidenhain, M. (ed.), European State Aid Law, Springer Verlag; Hart Publishers, Heidelberg; Oxford

Maier-Rigaud, Frank & Christopher Milde (2015) The Rescue and Restructuring Aid Guidelines of the European Commission - An Economic Point of View, World Competition: Law and Economics Review, 38(2), 189-213.

Maier-Rigaud, Frank (2012) Competition in Hospital Services – The Policy Dimension, Organisation for Economic Co-operation and Development Working Party No. 2.



Vertical Agreements


Vertical agreements have the potential to generate substantial efficiencies to the benefit of consumers by addressing free-rider issues and internalising externalities across the supply chain. The European Commission recognises these benefits explicitly in the corresponding Block Exemption Regulation.

We have dealt with several cases involving exclusive or selective distribution and retailing arrangements including cases where resale restrictions had to be analysed. Retail price maintenance (RPM) remains a hot topic and we have supported luxury brands in helping the authority distinguish between pro- and anticompetitive effects.

Our economic experts have also analysed and dealt with vertical production and distribution issues in the pharmaceutical industry.

Below is a selection of publications:

Maier-Rigaud, Frank, Nathan Blalock & Oliver Gannon (2019) Reverse payments: An EU and US perspective, in EU Law of Competition and Trade in the Pharmaceutical Sector, eds. Pablo Figueroa and Alejandro Guerrero, Edward Elgar, p.35-108.

Inderst, Roman & Frank P. Maier-Rigaud (2015) Vertical Restraints and the Forgotten Function of Prices in Brand Management, CPI Antitrust Chronicle, May 2015 (1).

Font Galarza, Andres, Frank P. Maier-Rigaud & Pablo Figueroa (2013) RPM Under EU Competition Law: Some Considerations from a Business and Economic Perspective,CPI Antitrust Chronicle, November 2013 (1).

Hellstrom, Per, Frank Maier-Rigaud & Friedrich Wenzel Bulst (2009) Remedies in European Antitrust Law, Antitrust Law Journal, 76, 43-63.