Fordham Law

Object Cases Still Require Hard Economics, Says Lasserre

Annual Conference on International Antitrust Law & Policy in Global Competition Review, September 27, 2013

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Rather than object cases being considered an easier route for authorities to bring
cases than on the effects of an allegedly anti-competitive agreement, Lasserre
said the process was still “grounded in economics”.

“Whatever the reasoning, economic analysis is at the heart of the assessment,”
said Lasserre. He was speaking at the 40th Annual International Antitrust Law & Policy conference at Fordham Law School.

Describing the analysis of anti-competitive agreements as “brushstrokes of black
and white with a rich palette of greys”, Lasserre said restrictions by object also
have their own economic complexities.

“[Rulings of] restriction by object reflect the consensus of economic literature
regarding negative impact on prices and innovation,” said Lasserre. Such a
finding does not remove an authority’s obligation to define the amount of damage
to the economy, he added, which again requires significant analysis.

Lasserre addressed the perceived lack of use by European enforcers of article
101.3, which requires an assessment of the potential pro-competitive effects of a
horizontal agreement. He said this perception was “not entirely true” and cited the
French authority’s investigation of multilateral interchange fees, which took an
innovative approach.

In its 2010 decision, Lasserre said, the authority found certain fees charged by
banks were a restriction by object, such as the fee for handling the digitising of
cheques. But other fees were assessed and exempted because there were
objective justifications for them, or they were proven to lead to efficiencies.

“National competition authorities are very ready to discuss efficiencies with
companies once we have assessed the agreement,” said Lasserre.

Lasserre also said that authorities are more than happy to approve certain procompetitive agreements as they can be a better outcome than the alternative.

“Sensible cooperation agreements remain preferable, in some instances, to direct
market consolidation,” he said.

But he accepted that the grey areas surrounding the analysis of horizontal
agreements need to be addressed. This would benefit both competition
authorities and businesses, he said.

“Setting up the appropriate legal standards is important, but so is giving
companies the appropriate guidance,” Lasserre said.

“[For authorities] it is very difficult to balance stark messages and clear
boundaries and [also] express openness to nuances and case-by-case finetuning,
which is also necessary.”

The conference concludes today.