Market Studies Making markets work well? 1
1. Background 2
Commission Sector Inquiries Typically fact finding inquiries but can be linked with dawn raids (occurred at outset of the pharmaceutical inquiry). Evidence intensive inquiries regarding costs, prices, profits, customers, barriers to entry etc. Generally at less detail then one may get by a national authority but over entire EC. No mandatory obligation to respond to informal request but Commission may take formal decision ordering requested information to be provided. Outcome? Preliminary findings published around 8-12 months after they start. No power to adopt measures at remedying situation under investigation. However can guide proposals for legislation and inform Commission position (for example Energy unbundling debate) Can also lead to cases under 101 and 102 3
Commission Sector Enquiries E-commerce (Started May 2015 - Ongoing) Energy (State Aid in capacity mechanism April 2015 Ongoing), Pharmaceuticals (July 2009) Lundbeck (2013) Servier (2014) Fentanyl (2013) Energy (2007) Distrigas (2007) RWE Gas (2009) ENI (2010) GDF (2009) E.ON (2010) Swedish Interconnectors (2010) Longterm electricity contracts in France (2010) Financial Services (Insurance Sept 2007, Retail Banking Jan 2007), 3G Media (2005) Telecoms (Local Loop (2002), Leased Lines (2002), Roaming (2001)) 4
German cases Past cases Food Retail Sector (2014) Rolled Asphalt (2012) Direct Heating (2012) Natural Gas (2012) Milk (2012) Dual Systems (2012) Petrol (2011) Electricity (2011) Heating (2010) No remedies from these cases but.. Bundeskartellant has relied upon findings of concentration to restrict consolidation (Petrol), Also to break up joint ventures (Rolled Asphalt) Similar to EU regime? 5
UK Phase I Market Studies Residential Property Mngmnt (2014) Supply of IT to Public sector (2013) Defined contribution pensions (2013) Quick House Sales (2013) Dentistry (2011) Private Motor Insurance (2011) School Uniforms (2011) Mobility Aids (2011) Off-grid energy (2011) Organic Waste (2011) Consumer contracts (2010) Equity underwriting (2010) Online targeting of adverts (2010) Outdoor Advertising (2010) Advertising of Prices (2009) Home Buying and Selling (2009) Insolvency Practitioners (2009) Isle of Wight Ferries (2009) Second hand Cars (2009) Northern Rock (2008) Sale and Rent Back (2008) Scottish Property Managers (2008) Homebuilding in UK (2007) Medicine distribution (2007) Personal Current Accounts (2007) 6
Phase II Market Investigations Adverse effect on competition leading to remedies: Energy (ongoing) PCA and SME Banking (ongoing) Aggregates cement and ready mix concrete market investigations (2012) Private healthcare (2012) Payday Lending (2013) Private Motor Insurance (2012) Audit Services (2011) Local Bus Services (2010) PPI (2007) Rolling Stock Leasing (2007) BAA (2007) Groceries (2006) PCAs in Northern Ireland (2005) Classified directory advertising 2005) Home Credit (2004) Domestic LPG (2004) Store Credit Services (2004) No adverse effect on competition: Movies on Pay TV (2010) 7
Number of Market Studies/Investigations started UK Regime: A few statistics 9 8 7 6 5 4 3 2 1 0 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 OFT - Phase 1 CC - Phase 2 CMA - Phase 1 CMA - Phase 2 8
And late to the party but catching up! UK FCA: Asset Management (2015) Credit Card (2015) Investment and Corporate Banking (2015) Retirement Income (2015) Cash Savings (2015) General Insurance add-ons (2014) Wholesale sector competition review (2014) 9
2. Minding the gap? 10
Thus a tale of two approaches Is there really a gap in enforcement that the market study needs to fix? No perceived gap in EC? No perceived gap in Germany? Many of the OFT/CC cases have focussed on consumer issues Transparency issues Switching issues Features of the market (not individual behaviour or agreements). Tacit coordination (aggregates)? Private Motor Insurance (A101?) Bus stations (A102?) With findings fitting under the banner of unengaged consumers Banks Energy Audit? Pay Day lending PPI 11
Proving consumer engagement issues? Do consumers exhibit behavioural biases and does competition make this better? Gabaix & Laibson (2006) competition doesn t correct bad equilibrium. But at least it increases likelihood of profits being competed away. How does one prove overall harm (taking account of waterbed)? Do we care if one group of consumers are subsidising the other? How does one solve a lack of consumer engagement? I ll switch if benefit of switching is less than the hassle How big is benefit little consumer surveys on what amount is necessary. Minimise the hassle of switching implies increasing transparency and reducing switching costs but there are limits Only so much consumer transparency one can provide! If biases are being exploited why can t consumer law solve this issue, and if they are just unengaged should a remedy be imposed? 12
Remedies: With great power. Forced divestments.. Private Health Care Aggregates BAA Access remedies: Local bus stations on FRAND Removal of agreements: Private Motor insurance (no MFNs) Groceries (no restricted covenants) Behavioural Remedies Audit (forced switching) PPI (cooling down) Transparency and switching remedies? Just about every consumer focused study! How do you prove behavioural biases? How do you prove that the remedies will solve those behavioural biases? 13
Solving consumer engagement issues? Are consumer remedies the poor neighbour of structural remedies? Little evidence that consumer remedies have created a significant change in consumer behaviour. PCA Banking (only 3% switched) Domestic Electrical Goods (limited evidence of impact of transparency) Too easy to reach for the a bit more transparency, price comparison site and easier switching remedy tool box. Firms may be willing to accept them regardless of impact (or especially because of!) Do we need more creative remedies to really move the dial in this area? Obligations to advertise cheaper competitors? Outsourcing consumer switching? 14
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Questions Is there sufficient legal scrutiny? CC/CMA appealed to CAT on hard remedies Private Health care Aggregates PPI BAA But what about market studies? Does ability to take undertakings in phase I make them more susceptible to lobbying/political influence? Similar critique is levied on Article 9 remedies at EC. Is there really a gap in enforcement? Why doesn t consumer law cover these consumer issues? Should we be plugging consumer enforcement rather than inventing a new tool? 16