Dr Peter Whelan and Dr Pinar Akman contribute to the Antitrust Marathon in Rome

Dr Peter Whelan and Dr Pinar Akman, both of whom lecture at UEA Law School, were invited to and attended the ‘Antitrust Marathon’ which was held at the Italian Competition Authority in Rome on 18 March 2013.

Dr Whelan chaired a panel session dedicated to the discussion of criminal enforcement of competition law. He also contributed to the panel discussion on the use of private enforcement of competition law. He argued that, for various reasons, public enforcement is far superior to private enforcement in achieving the relevant objectives of competition law enforcement and that therefore resources should be focused on the former type of enforcement rather than the latter.

Dr Akman also contributed to the debate on the private enforcement of competition law. In particular she argued that there are many procedural issues that have to be resolved in national laws, such as that of the UK, before one can expect to see an increase in private litigation. One pertinent issue is the period of limitations regarding follow-on actions against an infringer which has not appealed the authority decision finding an infringement of competition law.

The Antitrust Marathon is a long-running series of roundtable discussions sponsored by the Institute for Consumer Antitrust Studies of Loyola University Chicago School of Law and the Competition Law Forum of the British Institute of International and Comparative Law on enduring issues of comparative competition law. These discussions always take place the day before or after the great marathon races of the world. 

 The Italian Competition Authority and the University of Rome I (Sapienza) were additional cosponsors of the 2013 Antitrust Marathon. A transcript of the proceedings will be published in due course in the European Competition Journal.

CCP Seminar: The Oligopoly Problem in EU Competition Law

The Centre is delighted to welcome Nicolas Petit (University of Liege) as our guest this week. Amongst other ventures, Nicolas is known for co-authoring the very popular Chillin’Competition blog, with his colleague Alfonso Lamadrid de Pablo. He will be presenting his paper at this week’s CCP seminar, entitled ‘The Oligopoly Problem in EU Competition Law“. An abstract for his paper can be found below and a full-length draft is available here.

Abstract

This paper offers a complete overview of the oligopoly problem in competition law and economics, with a specific focus on European Union (EU) law. A related purpose of the paper is to challenge the dominant view that merger control is the ultimate preventive remedy against tacit collusion. On close analysis, the merger-only enforcement paradigm against tacit collusion generates a systemic risk of type II errors. Part of this enforcement gap may, however, be alleviated through a more muscular enforcement of the rules on coordinated conduct (i.e. Article 101 TFEU) and on unilateral conduct (i.e. Article 102 TFEU). In this later respect, the paper formulates a possible theory of harm that would entitle agencies and courts to apply Article 102 TFEU to specific types of conduct by oligopolists.

The concept of abuse of collective dominance may in particular be applied to the artificial tactics which oligopolists adopt to protect an observed collusive equilibrium from the natural, disruptive effect caused by an external shock (entry, natural disaster, change in tax rate, etc.). In this sense, the paper is different from other scholarly proposals that recommend applying rules on unilateral conduct to excessive oligopoly prices and/or facilitating practices.

‘What can Monitor learn from the Dutch experience of healthcare?’

The Centre’s Mary Guy (CCP and Law) will be asking ‘What can Monitor learn from the Dutch experience of healthcare regulation?‘ in her presentation to the UEA Law School, on Wednesday at 4:30pm.  An abstract for her seminar can be found below.

Abstract

The Health and Social Care Act 2012 (HSCA 2012) established Monitor as an economic regulator for healthcare. This new role involves concurrent competition enforcement powers with the OFT, an advisory function regarding mergers and a duty to cooperate with the Care Quality Commission. This division of effort between the competition authority and healthcare and quality regulators shares several similarities with the roles of the Dutch Competition Authority (NMa), Healthcare Authority (NZa) and Healthcare Inspectorate (IGZ).

While there are significant differences between the English and Dutch healthcare systems, there is also a fundamental similarity: both are EU Member States embracing greater degrees of liberalisation in their healthcare systems. This means that both are operating within the same legal framework and confronting similar competition issues such as defining undertakings and markets in healthcare. The extent of divergence between the two systems (the taxation-funded English NHS and the private Dutch health insurance system) remains to be seen in such matters, and particularly in the roles of the healthcare regulators.

The NZa was created by statute in 2006 with an apparently clearly-defined remit – to prioritise the “general consumer interest”, interpreted in terms of accessibility, quality and affordability. This remit has arguably both assisted and hindered the NZa’s development as a credible independent agency. In contrast to the new situation in England, there is a clear separation between the NMa and NZa’s respective roles regarding competition law. A notable example can be seen in the ex-ante assessment of dominance, or Significant Market Power, by the NZa. However, a lack of clarity about the NZa’s advisory role in merger control and NMa predominance has led to refinements being made to the general Dutch merger regime, culminating in a significant legislative proposal for a healthcare-specific merger test which gives both the healthcare and quality regulators a greater substantive role and is due to be enacted in 2013.

At first glance it appears that Monitor can learn much from the NZa’s experience of merger control as the functions of both involve cooperating with the respective quality regulators to advise the competition authorities (who retain exclusive competence in merger assessment). The first NHS Foundation Trust merger has now been referred to the Competition Commission, a test case which provides the first practical application of the healthcare merger regime envisaged by the HSCA 2012. This paper therefore provides a timely examination of what Monitor may be able to learn from the NZa as, despite differences between the Dutch and English healthcare systems, similar problems regarding Monitor’s credibility and effectiveness may arise once NHS entities are no longer overseen by the NHS Cooperation and Competition Panel but the OFT.

CCP Seminar: An EC perspective on Markets, Competition and Consumer Behaviour

This week, the Centre is delighted to welcome Jacqueline Minor (Head of the European Commission’s Representation in the UK) as our guest speaker at this week’s CCP seminar. Jacqueline will be discussing some of her recent experiences as an official in her presentation, entitled ‘An EC perspective on Markets, Competition and Consumer Behaviour‘. A short abstract for her seminar can be found below.

Abstract

The talk will address the role of consumer policy in a modern market economy and will consider the interaction between competition and consumer policy.

What evidence should policy makers assemble in order to determine whether intervention is necessary and if so, what form it should take?  How can behavioural economics improve the design of policy measures?

To what extent are consumer and competition policy complimentary and mutually reinforcing?  (eg in relation to public enforcement and remedies, redress and the organisation of public authorities)

In particular, what if anything, should be done to ensure that newly liberalised markets function optimally at retail level?

CCP Seminar: Media Pluralism and Citizen Knowledge

This week’s CCP seminar takes place on Friday 8th March and sees Shaun Hargreaves-Heap (CCP and ECO) presenting his research on ‘Media Pluralism and Citizen Knowledge‘. An abstract for his seminar can be found below.

Abstract

Media pluralism is valued in most jurisdictions, for example, because it contributes to a well-informed citizenry and this underpins the good functioning of civic institutions like representative government. However, there is considerable dispute over what it is specifically about the media that really matters for this purpose. We address this controversy by examining empirically what aspects of the media affect citizen knowledge across the 27 EU member countries. Such a large set of countries is unusual in studies of citizen knowledge, as is our coverage of a variety of types of knowledge: we consider economic, scientific, technological and social as well as the more usually studied political knowledge. On this basis, we are able to draw some sharp policy conclusions. For instance, concentration of titles in newsprint, as measured by the Herfindhal-Hirschman Index, typically matters more than concentration of ownership and detracts from knowledge. Concentration in broadcasting does not matter in the same way. What is important in broadcasting is the regulatory regime for public service broadcasting. Finally, differences in political and economic knowledge are less well explained by the media (and education and GDP per capita levels) than other types of knowledge.

Are calls to kill off NHS competition regulations misdirected?

Mary Guy, PhD candidate at UEA Law School and CCP member, has released this press comment:

Competition in the NHS could be managed even if proposed regulations are introduced, according to a researcher at the University of East Anglia (UEA).

It follows warnings from Dr Michael Dixon, chair of NHS Alliance and interim president of NHS Clinical Commissioners, about new rules published last month that aim to introduce competition to the NHS. Andy Burnham, shadow health secretary, has also tabled a motion which, if passed, would see the House of Lords reject the regulations introduced by the government.

Mary Guy, a researcher at the ESRC Centre for Competition Policy at UEA, says that if Labour’s call to reject the regulations is successful, it is unclear what the outcome for the NHS would be.

“However, implementation of the regulations does not mean that competition in the NHS cannot be managed,” she said. “EU competition law makes provision for exceptions, which would mean that where competition is not beneficial because it inhibits the provision of public service obligations, including healthcare, these would not be opened up to competition.

“A further protective mechanism is Monitor’s role as economic regulator for healthcare. Experience in The Netherlands, the only other EU Member State to experiment with economic regulators in healthcare, suggests that the presence of a dedicated healthcare regulator forces the general competition authority to recognise that healthcare is a unique market which cannot be opened to competition in the same way as, for example, utilities.”

The National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 were intended to put the Principles and Rules of Co-operation and Competition (PRCC) used by the NHS Co-operation and Competition Panel (NHS CCP) on a statutory footing.

Ms Guy added: “This appears relatively uncontroversial, given that the NHS CCP was established under the previous Labour government and advised the Secretary of State. What is more sensitive is that Monitor – an independent regulator – will be enforcing the Regulations, which include powers for it to investigate anticompetitive agreements and abuses of dominance. This is generally understood as the ‘full force of EU competition law’.” 

Mary recently wrote for our Competition Policy blog on the topic of “Monitor’s Advice to the OFT and the New Healthcare Regulation