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Anti-competitive Agreements Anti-competitive Agreements

Anti-competitive Agreements - PowerPoint Presentation

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Anti-competitive Agreements - PPT Presentation

Allan Fels Professor of Government The Australia and New Zealand School of Government ANZSOG Overview Horizontal agreements Cooperation collusion and cartels Per se prohibitions Other anticompetitive agreements ID: 525042

competitive price collusion agreements price competitive agreements collusion market competition cooperation vertical cartel restraints effects anti restraint potential sharing

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Slide1

Anti-competitive Agreements

Allan

Fels

, Professor of Government, The Australia and New Zealand School of Government (ANZSOG)Slide2

Overview

Horizontal agreements

Cooperation, collusion, and cartels

Per se prohibitions

Other anti-competitive agreements

Joint ventures

Vertical agreements

Price restraints

Non-price restraints

Case studies

2010 South African bread cartel

2007 Dutch beer cartel

Other IssuesSlide3

Agreements under Malaysian Competition Law

Per se illegal – horizontal agreements

Fix price or any other trading conditions

Market sharing or share sources of supply

Limit or control production, market outlets or market access, technical or technological development, or investment

Bid rigging

Other anti-competitive agreements – horizontal or vertical agreements

Object or effect of significantly preventing, restricting or distorting competition in any market for goods or services

Individual exemptions and block exemptionsSlide4

Cooperation vs

Non-Cooperation

Firms face a choice between cooperation and non-cooperation

Firms

recognise

the possibility of higher profits if they coordinate their activities

But there is a strong private incentive to not cooperate

Certain forms of cooperation are per se illegal as 99% of the time they are harmful and should be banned

Other forms of cooperation should be assessed on a rule of reason basis

Cooperation, collusion, cartelsSlide5

Economics of Cooperation

Potential anti-competitive effects

Higher prices

Reduced production

Welfare transfer from consumer to producers

Deadweight loss

Costs of forming and enforcing cooperation/collusion/cartel

Protects inefficient firms

Increased consumer search costs

Lower quality and variety of products

Decrease productive efficiency or innovationSlide6

Economics of Cooperation

Potential pro-competitive effects

Economies of scale and scope

Improve planning of production and distribution

Advantages in marketing and distribution

Research and development

Reduces riskSlide7

Collusion

Collusion will be successful if:

Potential for monopoly power, given the characteristics of the market

Expected high gains

Organisational

problems can be overcome

Unsuccessful cartels

Cartels that are caught are the unsuccessful cartels

Sometimes easier to catchSlide8

Collusion

Generally 3 types of collusion – agree to:

Fix prices, restrict output, market sharing, divide markets, bid rigging

Prohibited per se under Malaysian Competition Law

Take joint action to harm rivals who are not party to the collusion,

eg

collective boycotts

Only illegal if object or effect of significantly preventing, restricting or distorting competition in any market for goods or services

Manipulate the rules of competition in a manner that will lessen forms of competition other than price competition,

eg

restrict advertising Slide9

Collusion

Market characteristics for successful collusion

Inelastic demand at competitive price

Absence of large and sophisticated buyers

Homogenous products

Stable/predictable demand

Mature markets

Seller concentration

Lack of competitive fringe with elastic supply

Difficult to enter market

Similar cost structures

Eg

cement, coffee, fruit and vegetables, mobile phonesSlide10

Collusion

Conditions for successful, stable collusion

Competitors reach an understanding on price, output or another factor of competition

Detect deviations

Punish deviationsSlide11

Collusion

Reaching agreement

What is an agreement?

Firms might find it difficult to agree on a particular outcome as their interests are not perfectly aligned

Non-price variables and changing market conditions complicate matters

Common strategies

Cheap talk and focal points

Basing point pricing

Use trade associationsSlide12

Collusion

Detecting deviations – requires monitoring

Likelihood of successfully imposing/maintaining a cartel depends on

Short term benefits of non-cooperation

vs

Longer term loss of non-cooperation

Likelihood that cheating will be discovered and punished

Devices for detecting deviations

Information sharing

Meeting competition clauses

Repeated interactionSlide13

Collusion

Punishing deviations – examples

Quota reduction

Side payments

Non-cheating members to revert to the non-collusive prices by raising output for some time

Most

favoured

customer clause

Multi-market contacts

Increasing cross-ownership among rivals interests

Threat of a price warSlide14

Per Se Prohibitions

Proving the agreement

Evidence of explicit agreement between members

Evidence of parallel conduct

Mere parallelism?

Conscious parallelism/oligopolistic interdependence?

Evidence of facilitating/concerted practices

Information exchange?Slide15

Per Se Prohibitions

US approach

Contract, combination, or conspiracy

Parallel conduct + “plus factors” (typically circumstantial evidence that tends to exclude the possibility that the parties acted independently)

EU approach

Agreements, decision of associated undertakings, or concerted practices

Concurrence of wills

Parallel conduct is not proof of

concertation

unless

concertation

is the only plausible explanation for such conductSlide16

Per Se Prohibitions

Australian approach

Contract, arrangement, or understanding

Requires communication, consensus, and commitment

Price

signalling

and information disclosure re: banking sectorSlide17

Leniency Programs

Increases the probability of detection and punishment by placing cartel members in a prisoners’ dilemma

Interest in keeping cartel unproven

vs

Incentive to confess

Leniency increases the incentive to cheat and confess => increases cartel instability

Increases the probability of detection and punishment by placing cartel members in a prisoners’ dilemma

Lowers the cost of detection

Provides informationSlide18

Leniency Programs

Factors that increase the effectiveness of leniency programs

Threat of firm sanctions

Firms perceive a significant risk of detection

TransparencySlide19

Other Horizontal Agreements

Examples

Information sharing

Restrictions on advertising

Standardisation

agreements

R&D joint ventures

Apply rule of reason analysisSlide20

Rule of Reason Analysis

Facts peculiar to case

Eg

market power of the parties, competitive relationship between parties, economic conditions

Nature and scope of the restraint

What does the restraint actually do, how far does it extend

Reasons for its entry and adoption

Business purpose?

Is the restraint ancillary to the main and lawful purpose of the arrangementSlide21

Rule of Reason Analysis

Anticompetitive effects of the restraint

Compare the condition of the market before and after the restraint

Pro-competitive justifications

Eg

efficiencies, economies of scale, non-economic benefits

Is the restraint reasonably necessary to achieve those justifications, is it the least restrictive means

Weigh upSlide22

Example: Joint Ventures

Generally treated like other general anti-competitive horizontal agreements

Potential pro-competitive effects

Economies of scale

Spreading the risks and costs of research and development

Increasing incentives for research and development

Acquiring new technologies or skills

Synergies from pooling of complementary resources or capabilitiesSlide23

Example: Joint Ventures

Potential anti-competitive effects

Spillover collusion

Collateral restraints

Build or secure monopoly power by erecting barriers to entry and eliminating competition

Denying access to essential resources or facilities

Decreased dynamic efficiency

Reduction of competitive pressure leading to less incentive to engage in research and development

Reduction in diversity of research pathsSlide24

Horizontal Mergers

Normally dealt with under merger law

A merger maybe anti-competitive but there are greater chances of achieving efficiency gains

In the absence of a merger law, a cartel prohibition may generate mergers between competitorsSlide25

Vertical Agreements

Price and non-price restraints

Generally less of a concern than horizontal agreements from an economic perspective and treated more leniently

There is no economic reason to distinguish between price and non-price restraints

The nature of the restraint on its own does not allow prediction of whether will have positive/negative welfare effects

Cf

position taken by

MyCC

in its guidelines

Analysed

using Rule of ReasonSlide26

Vertical Price Restraints

Resale price maintenance

Maximum resale price

Minimum resale price

Recommended retail price

Examples

Perfumes

Sporting goods

Electronics

ShoesSlide27

Vertical Price Restraints

Potential pro-competitive effects

Enhances

interbrand

competition

Encourages non-price competition between retailers

Protects investment in brand image

Prevents free riding

Prevents loss leader selling

Attracts retailers by ensuring a certain level of profit

Preserves small business from national chains or discount operations

Avoids double

marginalisation

Potential anti-competitive effects

Aids collusion at both the manufacturer and retailer levels

Reduces

intrabrand

competitionSlide28

Vertical Non-Price Restraints

Non-price restraints

Geographic restrictions

Customer restrictions

Exclusive contracts

Requirements contracts

Exclusive distributorship

Tying conductSlide29

Vertical Non-Price Restraints

Examples

A will only supply B on condition that B not acquire any of its stock from C (a competitor of A)

A will only supply B on condition that B not sell to customers who live in the Eastern region

A will only supply B on condition that B also acquire washing powder from A

B agrees to acquire stock from A on the condition that A not supply to any another retailer in a certain area or of a certain kind Slide30

Vertical Non-Price Restraints

Potential pro-competitive effects

Enhances

interbrand

competition

Prevents free riding

Avoid double

marginalisation

Reduces distribution costs

Rationalises

production

Greater control over standards and services

Potential anti-competitive effects

Less choice and potentially higher prices

Market foreclosure

Increases barriers to entry at manufacturers’ level

Limits

intrabrand

competitionSlide31

Rule of Reason

Need to consider the impact of the restraint

both

levels of the market affected

In particular, note

Impact on inter- and intra-brand competition

Length of restraint

Impact on structural and strategic barriers to entry

Promotion of market sharing and price sharingSlide32

Vertical Agreements

Proving vertical agreements

Evidence of express vertical agreement

Circumstantial evidence?

Manufacturer announces in advance the circumstances under which it will refuse to sell, and then refuse to deal with those who do not comply

Distributing lists showing uniform prices to be charged

Termination following complaints

Other unilateral conduct/policies? Tacit acquiescence?Slide33

Vertical Agreements

US approach

Contract, combination, or conspiracy

Evidence that tends to exclude the possibility that the parties were acting independently

Reasonable tendency to prove that the parties had a conscious commitment to a common scheme designed to achieve an unlawful objectiveSlide34

Vertical Agreements

EU approach

Agreement or concerted practice

Concurrence of wills

Tacit acquiescence can be inferred

Where one party requires the cooperation of the other party to implement its unilateral policy and the other party complies with that requirement by implementing that unilateral policy in practice

Level of coercion exerted by a party to impose its unilateral policy on the other parties, together with the number of parties who implement that unilateral policy in practiceSlide35

Case Study: 2010 South African Bread Cartel

Entry barriers

Demand substitutes

Elasticity

Vertical relationshipsSlide36

Case Study: 2007 Dutch Beer Cartel

Entry barriers

Demand substitutes

Elasticity

Vertical relationshipsSlide37

Other Issues

International cartels and cooperation between

NCAs

Information sharing and leniency