COMPETITION POLICY AND COMPETITION LAW Presentation by Nkonzo Hlatshwayo Partner Webber Wentzel...
Transcript of COMPETITION POLICY AND COMPETITION LAW Presentation by Nkonzo Hlatshwayo Partner Webber Wentzel...
COMPETITION POLICY AND COMPETITION LAW
Presentation by
Nkonzo HlatshwayoPartner
Webber Wentzel Bowens
3 October 2007
Overview
• Consider the role of competition policy in fixing markets
• Competition law as an expression of policy choices made
• Policy choices are not cast in stone
• In some jurisdictions, issues not associated with competition policy may in fact have a close association with competition policy – public interests
Clear line of causality ...
• Competition in itself ensures all that is good -
efficiency, low prices, many products to choose
from, higher employment, increased welfare, greater
participation in world markets, equal playing field for
all ….
• Where does this causal link come from?
• Is it always true?
• Why do we need a law to ensure competition?
Origins of the “link”
• Adam Smith (“Wealth of Nations”) - the rational man
by minding only his own business will be led by “the
invisible hand” to promote the larger interest of
society.
• Introduced the concepts of “a market economy” and
free enterprise
• Neo-classical micro-economics: competition is the
engine of free enterprise
When competition works ...
• Numerous sellers, many buyers
• Must produce good quality products at acceptable
prices or be driven from the market
• Must be efficient and produce at lowest cost
• Only the best and the most efficient will survive in
the long run
But competition at times fails ...
• Government may suppress it
• Competition extinguishes itself (public utilities)
• Private participants subvert competition and prevent
market forces from operating freely
• Latter only possible if a firm has market power (it
can “make” prices)
Market structure and market power
• Market structure: number and relative size of
players in a market
• Perfect competition vs Monopoly (and everything in
between …)
• Market power = f(market structure)
• Monopolist is a price maker - market forces do not
determine the price
Perfect competitio
n
Perfect competitio
n
Monopolistic competition
Monopolistic competition OligopolyOligopoly MonopolyMonopoly
MANY FIRMS
ONE FIRM
• Number of sellers
• Product differentiation
• Barriers to entry
• Rival reactions
• Long-run profit greater than normal
Many Many Few One
None Yes Yes or NoUnique product
None None Yes Yes
None
No
None
No
Yes No
Possible Possible
Different market structures
Government’s options
• Do nothing - the market will correct itself (Chicago
School approach)
• Directly regulate the firm with monopoly
power (set prices, etc)
• Restore the vigour of competition through
competition/antitrust enforcement
Consensus on ...
• Competition is worth preserving
• Sometimes you need to be big to be efficient
• Big is not necessarily bad
• Nothing wrong with striving to be
“dominant” - it is what you do with your
dominance that matters
What is competition policy?
• As already indicated, the main reason for government’s involvement in the market place is that markets sometimes fail
• They do not produce the socially efficient quantities of goods at socially efficient prices
• As a result of such market failures, governments then intervene to improve market outcomes for consumers
• Governments sometimes use competition policy to support market based reforms
Competition policy as a catalyst
• In the past twenty years, many least developing countries, particularly those in Africa, have adopted market reforms that have been underpinned by competition policy.
• In many instances some of these reforms were prescribed by international aid agencies which insisted on the adoption of competition policy
• Competition policy has therefore been seen as a catalyst for market reforms
A competition friendly environment
• Often argued that when an environment is competition friendly, it attracts new entrants
• New entrants mean new investment, sometimes foreign investment
• Renders the country’s economy more efficient and therefore better able to remain competitive internationally
Competition is consumer friendly
• One of the key outcomes of competition enforcement is that consumers have product choices and competitive prices
• Markets work best in an environment where consumers set the standards and make demands.
• Greater consumer activism is an important element for competitive markets
What is competition policy?
• Competition policy is therefore a regulatory tool that is employed to address market failures by maintaining or creating the foundations for effective functioning markets
• Competition policy is aimed at emulating free market conditions
• In this connection, competition policy may require the establishment of regulatory institutions and procedures or legislation that will ensure equal opportunities for all businesses, stimulate economic efficiency and protect consumers
Key components of competition policy
• Economic policies aimed at enhancing competition in local and international markets
Trade policy Deregulation privatisation
• Competition law or anti-trust law
Competition law is therefore a sub-set of competition policy
South African experience
• Due to isolation, South Africa had a highly concentrated economy
• Many entities were not exposed to international competition
• A significant segment of the South African population had been excluded from economic participation by law
• South Africa’s own international competitiveness was doubtful given the fact that it had been isolated
Aims of SA’s competition policy
• The aims of South Africa’s competition policy are:• To promote and maintain competition in order to:
promote efficiency, adaptability and development
provide competitive prices and product choices
promote employment and advance welfare
expand opportunities for participation in world markets
ensure that small and medium-sized enterprises have an equitable
opportunity to participate
promote a greater spread of ownership (in particular in regard to
historically disadvantaged persons)
Common but unique
• Although some of these are common, they are at the same time uniquely South African –
International competitiveness
Promoting a greater spread of the economy to black South Africans
Employment
Barriers to the implementation of successful competition policy in Africa
• Conflict with other policy objectives
• Resistance from vested interests
• Lack of Good Governance
• Tension with sector specific regulators
What is competition law
• Competition law is a legislative approach to private as well as public concentration of economic power and the conduct that flows from this concentration
• Competition law governs both the nature and extent of competitive interaction among firms in all industries
• It is also the expression in legislative form of the countries’ competition policy
What is competition law?
• Competition law involves the enactment of laws and rules that are aimed at guaranteeing and maintaining a market where vigorous, yet fair, competition will result in the most efficient allocation of economic resources and the production of goods and services at the lowest price
• Its primary aim is therefore to create a level playing field where everyone can compete freely and fairly
Examples
• Public interest considerations in exemptions and mergers
The competitiveness of small firms and firms owned or controlled by historically disadvantaged South Africans
The impact of transactions on employment
Exemption if prohibited conduct would assist small firms or firms owned or controlled by historically disadvantaged South Africans to compete
The law reflects policy choices
• Dominance versus abuse of dominance
our law does not outlaw dominance: dominance in and of itself is not a problem
it outlaws abuse of dominance
conduct as opposed to structure (some constitutional issues)
Policy choices could be undermined
• Government often in a conflict situation
• The need to keep and maintain public entities that enjoy monopoly, on the one hand
• The need to introduce competition in those sectors, on the other
Sector specific interests
• Sector specific regulators often accused of industry capture
• Insistence on special rules for their regulation
• Immunity could compromise consistent application of competition principles
Examples: Telkom and banking
Reviewing policy choices
• After 8 years of enforcement, government is reviewing the policy choices
Review to deal with uncompetitive outcomes as opposed to anti-competitive conduct
Market surveillence powers for Commission
Power to investigate complex monopolies
Diverstitures
Structure versus conduct
• In the past conduct triggered investigation
• Proposed that structure should trigger investigation
• Pre-emptive versus reactive
• Pre-emptive to be twinned with merger control
Conclusion
• Competition is made up of the various policy choices that you make for purposes of promoting or maintaining competition in your country
• Competition law is the instrument you often use to implement your competition policy
• Competition policy could be undermined by new choices by government
• Government is often conflicted (Telkom, where government is a shareholder)