Aleksandra Boutin is a founding partner of Positive Competition. She has 15 years of experience in competition policy as an enforcer, consultant and academic. Aleksandra has a solid enforcement background, having spent several years in DG Competition’s policy directorate. She co-drafted the 2010 EC’s Guidelines on Horizontal Agreements, including the new chapter on information exchanges, and the BER. She also participated in preparing the communication of the Commission on quantifying harm in antitrust damage actions.
What do you enjoy most about working in competition economics?
What I enjoy most in competition economics is its real impact on consumer welfare and the need to think outside the box. Competition cases are actually one of the very few areas where economics applies very well. It is therefore possible to directly use theoretical and empirical insights to reach more solid conclusions and make a real difference, which is very gratifying. The issues that we currently face in complex mergers and antitrust cases might not be entirely new, but they raise new questions.
We are currently working very closely with leading academics to push the boundaries of what we know and to make more informed decisions. We work a lot on platforms – for instance, trying to understand whether their two-sidedness makes classical theories of harm more or less likely. We also work very intensively on organisation theory, trying to understand what happens within companies instead of treating them as black boxes. We also focus on how firm boundaries and incomplete contracts affect the performance of markets. Market power is not the only form of market imperfection and the way firms manage to coordinate despite conflicting interests within organisations also has an impact on consumer surplus. They might actually choose certain contracts, usually seen by competition authorities as restrictive, without any market power motive. In this context, the object of these contracts can therefore not be restrictive of competition. The counterfactual here, which could be vertical integration for example, is not necessarily better for consumers.
It might look like competition law is well settled in case law and precedent, but this is not true. There are always new things to investigate and new challenges for an economist who is able to think out of the box. I mentioned here a couple of examples of innovative approaches, but we are currently exploring many more areas like that. We are rewarded for our creativity by our clients’ satisfaction and the enthusiasm of our younger team members. These are very exciting times to be a competition economist.
How has the role of competition economist changed since you started practising?
Economists are generally much more involved in cases and they join earlier in the process, which adds to their success. In addition, due to follow-on damages, but also IP litigation and arbitration, economists in Europe are also more and more exposed to common law litigation, which is very different from litigation in front of administrative bodies. Discovering new procedures, with deeper judicial scrutiny on economic evidence, is a very good thing.
On the negative side, maybe because we are all so busy, we focus less on the general policy debate. For instance, the EU vertical guidelines will soon be discussed again. During the last revision, economists made a huge contribution, unfortunately with limited impact. It seems to us that we should try to make a difference not only through our cases, but also through more general policy contributions on all three instruments. For example, in the context of the Commission public consultation, we have put forward proposals on how to make merger control in Europe more efficient.
How do you prepare for a merger investigation?
We first try to understand why firms want to merge. There are two reasons for this. The first one is that this is the best way to engage with the businesses and to understand how firms compete and what matters for their successes. Our experience is that it is very common that some usual parameters are less relevant in a given context, while less usual ones are actually determinant. This will inevitably drive our competitive assessment. Second, further down the line, we might be contemplating proposing remedies. However, remedies impact not only on the competitive assessment, but also on the ability of firms, and ultimately customers, to reap the benefits of efficiency gains. Remedy discussions can happen very fast and are very intense. It is therefore particularly important to have a very clear view of what remedies are acceptable for the business, and which ones are not. If one does not have this clear view, one will not be able to convince competition authorities.
It’s important to get involved in the process early and frontload as much analysis as possible rather than wait for the authority to raise questions. It is very important for us to know what we face. Sometimes, some arguments are simply very difficult to win, and it is counterproductive to argue the indefensible. Firms should prepare for remedies rather than risking an accidental phase II or even a prohibition. Sometimes, there are very good reasons to believe that a merger will not lead to adverse effects, rather the opposite, despite concerning prima facie evidence. In this case, it might be preferable not to argue against this evidence, but rather to directly present the positive case for the merger. Merger control in Europe is the least adversarial litigation. Therefore, our approach is to always preserve credibility and to enter in a positive dialogue with the authorities as soon as possible. Merging firms never have a second chance to make a good first impression.
How has your work in the digital platform space changed over the past five years?
We have more and more work related to digital platforms, which gives rise to increasingly challenging competition and conceptual issues. While we often encounter familiar theories of harm, previously identified in other contexts, network effects that are inherent to platforms often intensify the problems and the multiple sides of the platform generally add complexities which require consideration.
Even large successful corporations are increasingly concerned by the behaviour of a few large, international and global platforms. We also notice a boomerang effect of enforcement against GAFAs, as national competition authorities open investigations concerning national platforms, which by far do not have the same market power and have no home market to use as a safe harbour. This is unintended and harmful.
What did you find most challenging about establishing your own firm?
The challenging part was getting the whole business infrastructure in place, while being an expert on demanding ongoing cases. However, there is another side to the same coin: we can build the team we want, attracting top economists we wish to work with, and create a corporate culture we like. On balance, the challenge is very rewarding.
You work across a variety of industries – to what extent is sector-specific knowledge important on the part of the economist?
I would say sectoral knowledge is helpful, but not essential. Of course, our past experience in media mergers is helping us in a media merger we are currently working on. We save time because we know what we are looking for. The same applies to enforcement in digital and high technologies markets, for example. However, sectoral experience also has a downside: one can come with preconceived ideas, while in reality each case is different. Looking at a new industry is also fun, and it is easier to think out of the box starting from a (relatively) blank sheet. In any event, you never know the industry and the market better than your client. Ultimately, I would say that experience in competition cases, both in private practice and as an enforcer, is even more useful as a background. It allows you to understand the constraints binding on the other side, and to predict where the authorities will be coming from in their assessment. This helps to create a positive dialogue.
How does Positive Competition distinguish itself from competitors?
As our logo shows, we are competition experts who bridge law and economics, academia and practice, as well as business and enforcement. Thanks to our academic backgrounds, experience in the European Commission, as well as training in EU competition law, we are able to place economic reasoning within the appropriate legal framework and to communicate it effectively to lawyers and regulators. Our thorough knowledge of EU antitrust procedures allows us to propose creative and pragmatic solutions to the most complex competition issues.
As already mentioned, we do not recycle old ideas – we try to push the boundaries. This is, for instance, one of the reasons we like to involve leading academics early on in cases. They bring their perspective and technical skills. We bring our perspective and experience as well. We speak the same language as them and can translate it effectively to outsiders, whether they are enforcers or clients.
What advice would you give to someone setting up their own firm?
I would advise them not to be afraid. While it might seem that having an established brand is important in the industry, it is really the personal brand that matters. It is mainly related to know-how. Clients are well informed and they can make the difference. We thought that it would be more difficult to attract talent in what might look like a riskier endeavour, but this is not true. Therefore, if you have an entrepreneurial spirit and you want to create something new, just go for it (or join us)!
Aleksandra Boutin is a “top-notch” economist who is hailed for her “analytical skills and ability to communicate complex results in an understandable and concise way”.
Aleksandra Boutin is a founding partner of Positive Competition. She has 15 years of experience in competition policy as an enforcer, consultant and academic.
Aleksandra advises clients on a wide range of competition issues in the context of merger and antitrust proceedings in front of the European Commission and national competition authorities (including the CEE region). Her recent experience involves cartel overcharge analysis, vertical and horizontal mergers, exclusionary and exploitative abuses, state aid, information exchanges, and sectors such as high technology, internet platforms, sports, media, manufacturing, oil, FMCG, insurance and agriculture.
Aleksandra has a solid enforcement background, having spent several years in DG Competition’s policy directorate. She co-drafted the 2010 EC’s Guidelines on Horizontal Agreements, including the new chapter on information exchanges, and the Block Exemption Regulation. She also participated in preparing the communication of the Commission on quantifying harm in antitrust damage actions. She was involved in many high-profile antitrust and merger cases in a wide range of sectors such as IT, energy, commodities, food, postal services, transport and banking. She is also the non-governmental adviser for Poland in the International Competition Network and leads a series of seminars on the role of economics in competition law at the Polish Competition Authority.
Aleksandra holds a master’s degree in theoretical economics and econometrics from Toulouse School of Economics and a master’s degree in European law and economic analysis from the College of Europe. She completed her PhD studies at the Université Libre de Bruxelles, where she teaches industrial organisation at graduate level. She is also a member of the scientific committee of the Global Competition Law Centre.