This presentation by Cristina Camacho, Head of Cabinet and Head of International Relations, Portuguese Competition Authority, was made during the discussion “Use of Economic Evidence in Cartel Cases” held at the 22nd meeting of the OECD Global Forum on Competition on 8 December 2023. More papers and presentations on the topic can be found out at oe.cd/egci. This presentation was uploaded with the author’s consent.

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THE USE OF ECONOMIC EVIDENCE IN CARTEL CASES
Global Forum on Competition
8.12.2023
Cristina Camacho

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01
02
03
The use of economic evidence in cartel cases
Presenting economic evidence to Courts and
to non-experts – practical examples
Concluding remarks

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01 The use of economic evidence in cartel cases
Detection
 Screening of data leading to
the opening of the investigation
 Screening results can also be
used as evidence to obtain a
judicial warrant
Proof of infringement
 Assessing the economic
context of the cartel
 Corroborating other evidence
 Assessing the duration of the
infringement
 Assessing effects (not required
in Portugal and EU)
Setting the fine
 Evidence of economic
benefits obtained by the
infringing parties may be a
relevant criteria to determine
the level of the fine
 Example: salt cartel
Economic evidence can be used in the full lifecycle of a cartel investigation:

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02 Practical examples
Detection - Security and Surveillance cartel
Economic evidence used to initiate investigation and to substantiate the request for search warrants and to
provide economic context of the cartel
Fig. 1: Share of bids above the reservation price across time Fig. 2: Coefficient of variation of tenders, across time
Tenders for which ≠ winning bid and reservation price < 2%
Tenders for which ≠ winning bid and reservation price > 2%
Tenders for which ≠ winning bid and reservation price < 2%
Tenders for which ≠ winning bid and reservation price > 2%
Source: AdC analysis with public procurement data Source: AdC analysis with public procurement data

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02 Practical examples
Proving the infringement – bid-rigging in hospitals
Economic evidence
used to demonstrate
patterns of
behaviour and
duration of cartel
Source: AdC analysis

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02 Practical examples
Proving the infringement – Economic context – Hub and Spoke cases
Key element of economic context
• Bargaining environment supplier/retailers how it
aligned incentives.
• Parties argued absence of incentives of suppliers.
• AdC: when retailers hold buyer power over suppliers,
they tend to put a downward pressure on supplier
prices.
• Suppliers gain incentives to soften competition
downstream to reduce that pressure and avoid
reductions in their margin.
• May have incentives to facilitate a collusive scheme
downstream to avoid a reduction in their margins.
• Additional margins for suppliers and retailers at the
expense of consumer surplus.

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02 Practical examples
• Detailed explanation of rationale and steps
to compute economic benefit in the final
decision
• AdC’s economic experts testified in Court
presenting the underlying evidence and
analysis
Economic benefit (EB) was computed as:
• For a firm selling below her quota, EB was at
least the value of the compensation received
• For a firm selling above her quota, EB was at
least the value of compensations paid
Setting the fine - Salt cartel

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03 Concluding remarks
Challenges
 Choosing the appropriate economic (or econometric) methodology to rely on
 The inevitable harder litigation process between the parties and the agency that the use of such
methodologies may bring to Courts
 Presenting economic reasoning in an intelligible without compromising robustness and accuracy
 The difficulty of showing the results from these usually complex methodologies in an intuitive way
before Courts
Tools
 Written documents: reasoning of decisions with detailed economic analysis
 Economic experts testify in Court (testimonial evidence)
 Courts may require the assistance of independent experts (expert witness) or economic adviser

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03 Concluding remarks
 Economic evidence must meet the legal standard of proof
 Coherent narrative – different elements and reasoning around the economic context must be a “happy
marriage” to deliver a sound narrative
 Need to assess carefully the added value of using economic evidence
 Need to clearly identify the exact objective of using the economic evidence – what is the thema
probandum
 Presenting economic reasoning – openly and thoroughly explain underlying evidence supporting the
analysis, assumptions and limits of the results
 Complement written reasoning with witnesses and economic experts aiding Courts
 Importance of training of non-economic experts and train agencies case-handlers by attending Court
hearings