Interview of Aleksandra Boutin for WWL Thought Leaders – Competition – Economists 2021
We are happy to share Aleksandra’s interview for the WWL Thought Leaders – Competition – Economists 2021. A big thank you to clients and peers for their nominations and kind words!
Aleksandra Boutin is a founding partner at Positive Competition with 15 years of experience in competition policy as an enforcer, consultant and academic. Previously, Aleksandra was an expert at Compass Lexecon and a policy and case scrutiny officer at DG Competition. She advises clients on merger and antitrust proceedings in front of the European Commission, NCAs and courts. She is also involved in follow-on damages litigation in several jurisdictions and a variety of sectors.
Describe your career to date.
Even though there are mixed opinions out there about the “revolving door”, it has been very valuable to me. More than 15 years ago, I joined CRA in London. I then passed a selection process to become an official at DG Competition of the European Commission. After a few years, I joined Compass Lexecon in Brussels to gradually realise that what I really wanted to do was to have my own practice. In 2018, we set up Positive Competition to provide a much-needed bridge between law and economics, business and enforcement, as well as academia and practice. It is really important for us to have constructive discussions with competition authorities. Our enforcement experience as well as solid academic credentials are usually very helpful here. We also work closely with leading academics, whom we involve at early stages of our cases to make sure our economic work is the most relevant and based on the correct assumptions.
My years at DG Competition gave me a good understanding of the policy big picture, DG Competition’s process, its priorities, as well as the legal and procedural constraints within which cases are decided. This is very valuable in my current work. As a policy and scrutiny officer, I drafted various sets of policy documents, including, among others, the horizontal guidelines, the intellectual property guidelines, methodology for estimating damages in follow-on cases, etc. I was also in charge of overseeing cases in several sectors such as high tech, basic industries or banking, and regularly took part in peer review panels on large merger and antitrust cases. Our fresh critical assessment would often lead to crystallising the theory of harm, refocusing of the investigation, or even closing the case altogether.
I believe that what I do now in private practice is not very different from what I did at DG Competition. Whether we work for defendants or complainants, we put forward economic evidence in cases that competition authorities need to properly assess. We only present credible arguments. This is both a question of ethics and efficiency. Competition practice is a long-term repeated game and the personal reputation of experts really matters. Little credit is normally given to arguments brought by competition economists or consultancies that have the reputation of putting forward arguments that are not credible. When we speak to our old colleagues at DG Competition, we need to be able to look them in the eyes.
What did you find most difficult about entering practice as a competition economist?
Our case portfolio is expanding exponentially and it is a challenge to keep up with adequate recruiting, despite our very significant growth to date. We are constantly looking for excellent economists who can make good consultants, i.e. who communicate effectively, can multitask and develop management skills, who are organised, detail-oriented, and at the same time, creative and able to think out of the box. This type of talent is scarce, but so far we have been very lucky.
We initially thought that it would be difficult to attract the best economists to join a start-up. It turned out that top candidates who really care about seeing the big picture, learning and benefiting from a relatively fast career progression recognise the value in working at a smaller firm. From day one, we have been recruiting at all levels at top economics departments in Europe and the United States. We have also hired the head of antitrust of the Polish Competition authority to lead our Warsaw office and we will have a very experienced competition economist joining our Brussels office as partner at the beginning of January.
Related to scale, some lawyers had a prior view that competition economics requires massive human resources to crunch numbers. This is not true and I think our practice has proven this to all our clients. This view in the market is gradually being revised. With modern communication and data techniques, as well as intelligent, agile, well-coordinated teams, we can handle cases of any size. As a matter of fact, we actually do handle some of the biggest antitrust investigations in Europe, including clients from all over the world.
We also thought that we would face an obstacle in that our competitors would have much more established brands. It turned out that this is all really about our personal brands and of course the quality of the team behind us. We are competition experts in the end and we like healthy competition on the merits, not prominence and incumbency.
What is the most interesting case you have been part of?
This is a difficult question because each case I get involved in is very interesting. Economists are only hired on exciting matters.
I have recently been involved in a few cases involving online platforms (both software and online marketplaces) and these certainly require extremely interesting conceptual work which builds on and extends existing economic theory. In these cases, we have also been able to obtain good-quality data to support the assumptions underlying our analysis. Working with the platforms’ big data has allowed us to push our technical frontier and build up our internal capacity.
In several antitrust cases, we have also managed to expand the standard competition economist’s toolbox, which essentially boils down to industrial organisation. Fields like organisation theory and behavioural economics have received many more Nobel prizes, while their influence in antitrust has been very limited so far. We are working on pushing these boundaries in our current case work.
For example, we have recently worked closely with Professor Patrick Legros, who founded the industrial organisation field of economics, to put forward objective justifications for certain types of rebates schemes. We were able to show that in the presence of relation-specific investments and when renegotiation is unavoidable, optimal contracts are very non-linear. One of the results of the research was, for instance, that rebates based on market share thresholds were fostering, rather than hindering, dual sourcing. We have also guided compliance work regarding the firm’s pricing policy, which actually led to the Commission deprioritising the case and making our client very happy. This was very satisfactory to us.
In another case, where we worked closely with Bruno Jullien and Thibaud Verge, apart from the more traditional IO modelling, we explored the role of behavioural biases and prominence. We also recently explored novel theories of harm in platforms with Jacques Cremer and Bruno Jullien.
To what extent would you say merger control is becoming too burdensome?
I think it is, and everyone knows that; the question is, “What is the solution?”
Because market thresholds are very poor indicators of the potential competitive harm, most mergers that are notified raise no issue. The simplified procedure is not that simple and actually can be quite burdensome. Most of the mergers notified under the normal regime also raise no questions at all and this can be fairly obvious at the outset. The result is that, while we spend way too much time controlling mergers that create no problems for competition, we lack time and resources for those that really matter. We possibly miss quite a few anti-competitive mergers and it is unclear that the new Article 22 proposals will solve the issue. Overall, the burden is very high for the notifying parties and the authorities alike, and respecting fair proceedings is a challenge in this context.
On that, in our response to the Commission’s public consultation on the merger reform, we have proposed to implement some positive changes in the current merger control framework. In particular, we argued that the notification obligations should be much wider, but focused on simple documents, comparable to HSR documents in the USA. In addition, the European Commission would need to opt in to investigate a merger, such that it does not need to issue a decision at all to clear the way for a merger. The current notification process would still be in place, but it would be voluntary. In practice, notification would be used at the initiative of firms who know that their operation will obviously attract the Commission’s attention. Such notification could also be requested by the Commission.
We also believe that we should shorten the pre-notification phase, which is a “no man’s land” in terms of due process. Instead, if requested by the parties, we should allow to extend the Phase 1 and Phase 2 of proceedings. The current pre-notification procedure is inherently unequal as the merging parties are strongly encouraged to disclose their economic arguments while facing very limited transparency on the Commission’s thinking and approach. Such asymmetry can make the notifying parties excessively cautious to reveal their analysis as the Commission could turn it against them without giving the parties the opportunity to respond to its assessment of this evidence. This is a bad non-cooperative equilibrium.
We also believe that the Commission should introduce an opportunity for a second submission from the parties after the reply to the Statement of Objections. This would follow a procedure akin to the traditional court proceedings, where the parties can use a second round of pleadings to further develop their arguments or, alternatively, waive this right to speed up the process.
Then, as we have argued recently in a recent JECLAP article, we must enhance the role of the Commission’s oral hearings where both the Commission’s and the parties’ experts can be cross-examined on equal terms, with respect to the substantive arguments of their competitive assessments.
What are the main legal challenges that large tech companies such as Google and Amazon pose with regard to competition?
I think it is important to recall that all GAFAM, as well as other important companies, were single product companies at some point. They developed a portfolio of products since then and this is great. But I think we have an issue if we can no longer see lateral entry of top-quality single product firms because they face massive super-dominant integrators that constantly leverage their market power from one segment to another. We cannot live in a world in which the only viable way to market for newcomers is to either focus on a harmless add-on to GAFAM’s core technology or sell their transformative innovative solutions to tech giants.
That being said, I think that the current competition tools are fit to enforce against these firms and to ensure fair competition on the merits in digital markets. I must disclose that I am involved in some of these cases on the complaint side and I do not see any major legal obstacles that could stand in the way to effective enforcement. I believe that competition authorities play a critical role in these markets today. They cannot allow tech giants to tell their innovative competitors: “Beware getting too close, do not enter my kill zone.”
How has covid-19 affected your practice? What new issues are being raised as a result of this pandemic?
The fact that work has shifted online has impacted the digital cases we are involved in. I have seen the anti-competitive effects of abusive conduct that we observed before the pandemic intensifying at a very high speed since last March because the markets concerned have matured much faster. This is, of course, in a context where network effects would have even a greater role to play and market tipping would happen incredibly fast.
In this context, it is even more important that competition authorities are able to conduct proper assessment and issue decisions imposing effective remedies quickly. To undo the harm that has occurred with such an intensity, and to restore competition on the merits, effective remedies in the times of covid-19 need to be significantly more demanding than if the intervention took place before the pandemic.
What are your priorities for the firm’s development over the next five years?
We want to be able to foster deep positive dialogue between all the various stakeholders, always with the ambition to be at the frontier of academic thinking and continuously proposing workable innovative solutions.
We are also working on expanding the network of our academic consultants. We are putting together a scientific council, which will be working exclusively with us and who will further support us in our ongoing cases and initiatives.
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