Counterfactual Tests in Competition Law

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.

Keywords: counterfactual, antitrust, competition law, effects-based approach, causation, dominance

JEL Classification: D4, K0, L1, L4