The Shift Towards Evidence-Based Competition Law
Over the past thirty years, the enforcement of competition law has gradually moved away from a narrowly formalistic approach and towards a more substantive assessment, grounded in economic and empirical evidence. It is no longer confined to identifying specific forms of conduct or mechanically classifying practices. It requires an understanding of actual effects, incentives, costs, prices, market shares, competitive dynamics and the appropriate counterfactual. In other words, economic analysis does not merely complement competition law. In many cases, it is the mechanism through which the legal rule acquires substantive meaning.
Why Modern Markets Require Economic Analysis
This evolution is not accidental. Modern markets are complex, multi-layered and often opaque. Digital platforms, energy markets, financial services, telecommunications, infrastructure, networks and markets characterised by strong economies of scale cannot be assessed adequately through general legal formulations alone. Their actual operation requires an understanding of commercial incentives, barriers to entry, customer behaviour, cost structures and the likely effect of a practice on the competitive process. Without this economic lens, there is a risk of either overstating a competitive concern or underestimating a serious market distortion.
The Role of the Economic Expert in Competition Cases
Within this context, the role of the economic expert has become critical. The value of such expertise is not limited to court proceedings, although that is often where it is most visible. It is equally important for businesses defending themselves against allegations of infringement or seeking to substantiate harm or anticompetitive foreclosure; for legal advisers who need an empirical foundation for their arguments; and for competition authorities required to make decisions that affect the functioning of markets. The economist does not replace legal judgment. Rather, the economist enriches it with the analytical tools needed to ensure that such judgment is grounded in real-world evidence.
Independence, Methodology and Credibility
This contribution, however, depends on certain essential qualities. An economic expert must bring specialised knowledge, experience, judgment, methodological discipline and, above all, independence of thought. An economic report that merely searches for arguments to confirm the client’s position offers little real value. On the contrary, it may weaken the case and undermine its credibility. The credibility of an expert is assessed by the ability to examine the evidence objectively, recognise limitations, evaluate alternative explanations and support conclusions with sound economic theory and empirical analysis.
Making Economic Evidence Clear and Persuasive
Clarity is equally important. Economic analysis must not only be technically robust. It must also be capable of being explained in a way that is understandable, persuasive and useful to those called upon to make a decision. Courts, authorities, legal advisers and businesses do not need impressive terminology. They need clear answers to the essential questions of the case: why a particular methodology was chosen, what the empirical evidence shows, how reliable and robust the conclusions are, and what they mean in practice for the application of the law.
From Plausible Assertion to Proven Position
Ultimately, the value of an economic expert does not lie in the length of the report or the complexity of the model. It lies in the ability to explain how the market works in practice, to illuminate the dynamics of competition and to translate complex economic evidence into clear and persuasive substantiation. In modern competition cases, this is often the difference between an assertion that sounds plausible and a position that can genuinely be proven.
This article was prepared by Marina Kouloumbri during her summer 2026 internship at Trojan Economics.
