Ruben Elkerbout is a partner in Stek’s competition law and regulated markets practice and a modern antitrust geek who goes at great length to guide his clients through the muddy waters of competition law. He is an all-round competition law expert who advises and represents clients across numerous sectors, for example, aviation, transportation, leisure, maritime services and fast-moving consumer goods. He has ample experience with multi-jurisdictional cartels, including leniency procedures, internal investigations and dawn raids, and follow-on cartel litigation. He also frequently advises on complex and challenging mergers, distribution and agency relations, abuse of dominance probes and state aid procedures.
What attracted you to a career in competition law?
Competition law is, in my honest opinion, the most exciting field of law there is, considering the complexity of markets, and the economic and legal context. It is very dynamic – markets change, insights change. As a lawyer, you have to deal with litigious components as well as transactional components. The combination of these two elements is what ultimately attracted me to a career in competition law.
What qualities make for an effective competition lawyer?
To be an effective competition lawyer you first of all have to be on top of your game when it comes to knowledge of markets and competition law. This, of course, is a prerequisite. Second, you need to improve and innovate your game all the time. One of the biggest challenges for competition lawyers today is the rise of the digital economy. Attempting to apply traditional rules to a digital framework requires ambition to improve your own skills as a competition lawyer.
How has the market changed since you first started practising?
In the Netherlands, since I first started practising competition law, the market has changed quite a bit. There is more competition now in the market, including from niche firms and boutique firms (like Stek). As a lawyer, you have to be more visible, effective and provide value for money, as clients have become more demanding (and rightly so).
What role do you see data playing in M&A and cartel damages cases in the future?
In recent years, especially in the Netherlands, there has been a surge in follow-on cartel damages proceedings. Estimating these damages all depends on the availability of data. So, you can safely say that the role of data will only increase in the future with regards to cartel damages cases. Moreover, competition authorities increasingly rely on (internal) data to assess market power and the effects of concentrations. Take the decision in T-Mobile/Tele2, for example.
How do you see the Dutch Competition Authority changing its focus in the next five years?
I do not have a crystal ball, but I suspect that in the next five years the Dutch Competition Authority will move towards a stricter supervision of cartel prohibition, focusing more on potential buying cartels and vertical restrictions. The ACM will probably also focus more of its attention on the market power of certain digital platforms and, where necessary, make use of ex ante interventions. Competition policy will be adapted towards the demands of the digital age. In addition, I think that the ACM will continue to lead the debate on competition law and sustainability arrangements, inter alia, by allowing certain cooperation in cases where the benefits of the collaboration for society as a whole must outweigh the disadvantages.
How is technology currently revolutionising the nature of competition law?
Until a couple of years ago, few people were concerned about the market power of tech giants like Apple, Amazon, Facebook or Google as they seemed to improve the life of consumers. Now, there are calls for breaking up these companies and getting rid of the consumer welfare standard which is standing in the way. So, we can safely say that technology (or tech companies) is shaping the current debate on the use and place of competition law in democratic societies. Furthermore, competition authorities are increasingly taking into account the potential gatekeeper role of platforms and algorithms when assessing potential antitrust infringements. Or as Vestager put it: “Companies can’t escape responsibility by hiding behind a computer program.”
How would you like to develop your practice in the next few years?
In the next few years, I would like to stay on course. That is to work with the highly talented lawyers in my team to gradually expand our practice by adding new clients to our roster, and by working on exciting merger control cases, antitrust investigations and competition law disputes while at the same time still having fun.