We are happy to share Xavier’s interview for the WWL Thought Leaders – Competition – Economists 2021. A big thank you to clients and peers for their nominations and kind words!

Xavier Boutin is a founding partner of Positive Competition. He has 15 years of experience in the analysis of competition cases, business strategies and public policies. Xavier also spent almost eight years as an economist at DG Competition. He was involved in a wide variety of high-level antitrust, merger and state aid cases (including in front of the ECJ), and policy issues (including the 102 and 101 guidance papers and the state aid modernisation).

What do you enjoy most about working in competition economics?

Being a competition economist is a perfect mix between conceptual and empirical work with direct, observable, real life impact. This is quite unique. In addition, competition economists do not work in a bubble, only surrounded by likeminded professionals. They have the chance of interacting with very diverse people who have different perspectives. Competition economists, of course, interact with lawyers. Those in public office interact more with the policy makers, while those in private practice interact more with the business people. I have had the chance to do both. This diversity, like any diversity, is a great opportunity.

What do clients look for in an effective competition economist?

First, I think they want reliable partners who deliver what they have promised. But beyond this necessary quality, I think there is a wide diversity of approaches and personalities among competition economists. I cannot talk for others, but I can repeat what our clients tell us about the reasons they repeatedly come to us. Thanks to our experience as academics we are able to propose state of the art conceptual and empirical approaches. At the same time, due to our experience as enforcers and consultants, we also understand the constraints of both businesses and competition agencies. Because we are very comfortable with these constraints, we are able to think outside the box and propose original workable solutions. Most importantly, we are passionate about helping our clients and never come with preconceived ideas or answers. We always start our engagements by asking questions about the issues the clients face and intend to solve with the merger or the particular market conduct in question.

What has been the most challenging case you have worked on to-date, and why?

I always prefer the cases I am currently working on, because these are generally the ones where I am still looking for answers. Therefore, I have in mind three large cases: a 101 case, a 102 case and a vertical merger. The most interesting and challenging cases are those that allow you to go beyond the obvious first answer and the established preconceptions. For instance: when is it that a practice that looks procompetitive in a certain context, or at least could arguably bring efficiencies, becomes anticompetitive? Conversely, when does something that could prima facie look bad actually benefit consumers? Where is the limit? Where do we draw the line?

To answer these questions, we engage on a daily basis with leading academics to push the boundaries. We jointly produce research that is more relevant and arguments that are more convincing for competition agencies, to the benefit of our clients. There is nothing more satisfactory than crystallising an intuition coming from our discussions with the business people, conceptualising it with economic modelling and substantiating it with empirical evidence. I like a lot this quotation from Boileau, which summarises perfectly what we are trying to do: “What is well conceived is clearly stated, and the words to say it come easily.” There is actually a lot of work to arrive to the moment when people from business read your report and say, “Yes, thanks a lot, this is exactly what I had in mind, it is a lot clearer now.”

You work across a variety of industries. To what extent is sector-specific knowledge important on the part of the economist?

I think that some degree of sector-specific knowledge is necessary. However, the main value added by the economists is the way they look at issues and conceptualise them, based on a handful of strong principles. It is more difficult to learn these instincts than the specificities of most markets. You, of course, gain time when you already know a market inside out. However, there is also the risk that you are entrenched and have preconceptions. It is not uncommon that industry experts, who have focused their entire career on one sector only, think that their sector has exceptional features. And very often, after discussing with them, you realise that very little is actually so exceptional. Therefore, it is very useful to have seen many different markets and market structures to be able to bring a fresh approach to competition cases.

I have in mind a particular industry expert who had explained to the client that their market was a natural monopoly. A particular layer of the market had indeed “naturally” evolved to become a monopoly, mostly due to public intervention actually. However, this was a consequence of the sector’s history and there was nothing “natural” in this monopoly from an economic or competition law perspective! It was a good thing that “outsiders” were asked to look into these arguments.

To what extent is antitrust becoming more politicised?

I am sometimes surprised that people are surprised that it is becoming politicised. It is as if they forgot where we come from. After all, we refer to “competition policy” as our field! I like a lot this quote from John M. Clark in Alternative to Serfdom (1948), which is a response to Hayek’s Road to Serfdom, which in my mind perfectly describes the purpose of the “social market economy”: “The world is in the grip of a mighty struggle. On one side are the forces driving toward chaos and anarchy. . . On the other side are the forces of centralised control. Between them stand the forces and men who are trying desperately to salvage a workable basis for a human and ordered community in which some effective degree of freedom and democracy may be kept alive, without wrecking society by their undisciplined exercise and disruptive excesses.”

The accumulation of market power is a threat to both economic efficiency and democracy. Acting as a counterweight is the raison d’être of competition law. It is completely legitimate to have enforcement priorities and try to push the boundaries when faced with new challenges.

What is not legitimate, but not more now than before, is arbitrary political intervention, one way or another, in specific cases. But as long as public intervention happens in the open with democratic controls, as long as it respects due process and the rule of law, and is based on evidence, political priorities seem legitimate to me.

Therefore, the question is not whether, at a theoretical level, competition law is politicised, but rather whether the policy options that are currently on the table lead to good or bad policies, whether they do more good than harm. Sometimes the answer is a clear yes, sometimes this is unclear in our opinion. We regularly comment on that at Positive Competition. Let’s have more economists and lawyers embrace the debate!

What are the main challenges currently facing competition economists?

I think that the main challenge for economists is to be relevant while still focusing on their comparative advantage. The main challenge for young economists is to remember that they are asked to contribute to cases within established antitrust procedures and processes, that take place in a particular legal and political context, within a particular history. We are not starting a book on a blank page every time. This can be frustrating at times, but these constraints are also a source of interesting challenges: one needs to find a way out of the box.

However, over-complying with the legal context is equally dangerous. This is a characteristic often seen among the more experienced economists. I think that when an economist starts talking about vertical foreclosure quoting Bronner, or about predation quoting AKZO, he has completely lost it and no longer adds value. I don’t think economists should quote more case law than lawyers, as it sometimes happens in practice. I think that competition economists should accept, and even embrace, the constraints coming from the legal context. However, they should beware of being captured by it. Rather, they should cultivate their originality to find ways out of the box.

What advice would you give to younger economists hoping to one day be in your position?

I don’t think young people should “hope to be” in someone else’s position in the future. I am the founding partner of a successful consultancy, but this is not how I define myself. More importantly, I am a fulfilled person and I do my best to make sure that my private and professional lives energise one another. This is the position I wish younger economists to be in.

Don’t try to be someone else, know who you are. Try to know what makes you happy, which should be a mixture of what you like to do, what you are good at and what is useful. Stick to it, nurture it. Try to be a good and decent person. Be kind and be indifferent to negativity. And don’t be afraid.

   Read the interview