Thursday, December 30, 2010
Posted by D. Daniel Sokol
ABSTRACT: This article looks at the growing use of the counterfactual approach in European and UK competition laws. The term counterfactual has not been a feature of European competition law, with the exception of merger control, to date. However, with the move to an effects-based approach, counterfactuals are being used occasionally, hesitantly and with mixed results. The article examines the use of counterfactuals in 'behavioural' competition law investigations based on a review of UK and EC competition guidelines, decisions, and several leading UK cases.