The Practice of Efficiency Defense in Antitrust Cases: A Comparison of BRICS and European Cases

Abstract

In non-merger antitrust cases efficiencies should play a significant role when authorities decide on cases as many potentially anticompetitive practices may have pro-competition effects, according to economic theory. In many jurisdictions rule of reason or effect based legal standard is claimed to be the policy adopted according to the own authorities. For such legal standards, considering efficiencies is part of the standard analysis protocol. We review the practice of efficiency defense in antitrust cases in selected BRICS and European countries. The case study shows that efficiencies are considered in rulings less often than expected. Similar arguments are used across countries, suggesting a common underlying economic analysis across jurisdictions that may have different legal institutions. We have employed the cross-country comparison based on Brazil, Russia, India, and South Africa cases. We also summarize the main reasons for efficiencies analysis not to be able to reverse the concluded anticompetitive effect from a business practice.