Return to sender: the General Court’s judgment on UPS/TNT

The EU General Court has aned the European Commission’s decision to block the UPS/TNT parcels merger. The Court was concerned that the parties were not given access to the final version of the Commission’s econometric model. This case highlights the importance of transparency in relation to economic evidence—not only from the merging parties, but also from the competition authorities.

The General Court has upheld an appeal against the European Commission’s UPS/TNT merger prohibition, over four years after the Commission issued its decision. It concluded that the Commission should have made the final version of its model available for the parties to review. Although there is some risk that this case could make competition authorities think twice about relying on quantitative evidence, it also represents an opportunity for them to become more transparent, albeit within the constraints that they face.

Background to the UPS/TNT merger

In March 2012, UPS announced its plan to acquire TNT. Both companies were major players in the small-parcel delivery market in Europe. The Commission started investigating in June 2012, and soon raised concerns over price rises that were likely to result from the merger.

The Commission and the merging parties conducted extensive economic analysis to assess whether prices increase with concentration in express parcel delivery markets in the European Economic Area (EEA). The main econometric model used was a price concentration analysis (PCA). PCA aims to estimate the impact on prices of a reduction in the number of competitors.

The PCA in this case assessed the effect of a reduction in the number of parcel operators on a ‘lane’ (an origin–destination pair).¹ The merging parties and the Commission agreed that the analysis showed that parcel delivery prices do increase with higher levels of market concentration, but disagreed on the magnitude of the effect.

After a detailed phase 2 investigation, the Commission concluded in January 2013 that the merger would be likely to result in price increases in 15 EEA countries where countervailing factors (such as merger-specific efficiency gains) were not significant enough to offset the loss of competition.² The Commission deemed that the merger would therefore lead to a significant impediment to effective competition (SIEC) in these countries, and blocked it. The merging parties appealed the Commission’s decision. (Meanwhile, TNT has been taken over by another rival, FedEx, a deal approved by the Commission in January 2016.)³

The General Court judgment: bad news in the post for the Commission

In March 2017, the General Court aned the Commission’s decision on the basis of the right of defence of parties.⁴ In its judgment, the Court noted that:

The Court found that it was ‘clear from the documents in the file that the final version of the econometric model was not communicated to the applicant’.⁵ The failing that the Court identified is indeed a fairly technical point, but it is non-negligible:

In statistics, a continuous variable can take on any value between two specified values, whereas a discrete variable can take only certain values from a finite set. For instance, the number of competitors in a given market is a discrete variable, as it can be specified only in whole numbers; on the other hand, the market share of firms can be expressed as a continuous variable (e.g. 40.19%).

The judgment of the Court in UPS/TNT, while focused on a point of law, at the same time illustrates the critical importance of transparency in the use of economic evidence.

Transparency cuts both ways

Economic evidence often plays a key role in competition investigations, and parties in competition cases are asked to follow the competition authorities’ guidance on the submission of this evidence, as described in the box.

Transparency of competition authorities: clear benefits

As the UPS/TNT appeal has shown, competition authorities also have a duty to share their economic evidence with parties under investigation—particularly the final versions of any models that are used to inform overall case decisions such as whether to clear or block a merger.

This is not the first competition authority decision to be overturned due to a lack of transparency with regard to economic evidence. In December 2014, the UK’s Competition Appeal Tribunal (CAT) and part of the final report into the private healthcare market investigation by the Competition and Markets Authority (CMA). One reason was that the CMA made material errors in its price analysis. Some of these errors came to light only after the CAT ordered the CMA to grant the parties additional access to its econometric analysis via a data room.⁶ The CMA acknowledged that it had made a procedural error by not consulting the parties after altering the analysis. Transparency is important for complex models, as technical assumptions can have an impact on the results; even if the parties only audit the authority’s model and do not submit their own, this is likely to be a useful check on the quality of the authorities’ work.

Data rooms and confidentiality rings

Transparency has improved over the last decade. The European Commission published its guidelines on best practice in January 2010⁷ (see the box above). Data rooms and confidentiality rings⁸ are now more frequently permitted by competition authorities for parties to examine economic evidence and models.

However, it is also important to acknowledge that competition authorities face significant time constraints in merger proceedings, and that they have to ensure confidentiality. These issues create challenges and limitations, even for competition authorities wishing to maximise transparency. The data room process often involves a significant amount of time and effort for the authority and for external lawyers and economists; for example, strict confidentiality rules mean that parties’ advisers cannot take any written material out of the data room without the authority’s approval, and they are not allowed access to the Internet or to phones and other wireless devices. All sessions must be supervised by officials, and thus have limited working hours.

Nevertheless, competition authorities can plan ahead for potential data exchanges, confidentiality rings and data rooms in the course of the investigation. This can reduce the risk of decisions being overturned due to a lack of transparency or modelling errors.

Conclusions

It remains to be seen whether the Commission will appeal the UPS/TNT judgment to the Court of Justice. However, if the General Court’s judgment stands, this should be welcomed as it demonstrates that courts can provide guidance to regulators and competition authorities on transparency when it comes to the use of economic analysis in decisions.

¹ European Commission (2013), ‘Case No COMP/M.6570 – UPS/TNT Express’, January, para. 727.

² European Commission (2013), ‘Case No COMP/M.6570 – UPS/TNT Express’, January.

³ European Commission (2016), ‘Case M.7630 – FEDEX/TNT Express’, January.

⁴ Judgment of the General Court (Fourth Chamber) of 7 March 2017.

⁵ Judgment of the General Court (Fourth Chamber) of 7 March 2017, para. 203.

⁶ Competition and Markets Authority (2014), ‘CAT ruling on private healthcare remittal’, news story, 23 December. Data rooms are physical or virtual places where confidential data can be stored securely.

⁷ European Commission (2010), ‘Best practices for the submission of economic evidence and data collection in cases concerning the application of Articles 101 and 102 TFEU and in merger cases’, January.

⁸ A confidentiality ring is an agreement that reduces the risk that confidential documents will be used outside the case. It usually involves limiting access to the documents to specific people.