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Using market studies to tackle emerging competition issues – OECD Secretariat – December 2020 OECD discussion

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OECD Directorate for Financial and Enterprise Affairs
OECD Directorate for Financial and Enterprise Affairs

This presentation by the OECD Secretariat was prepared for the discussion on “Using market studies to tackle emerging competition issues” held at the 19th OECD Global Forum on Competition on 10 December 2020. More papers and presentations on the topic can be found at http://oe.cd/mstei. This presentation was uploaded with the author’s consent.

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GLOBAL FORUM ON COMPETITION 2020 USING MARKET STUDIES TO TACKLE EMERGING COMPETITION ISSUES Presentation by the Secretariat 10 December 2020 Patricia Bascunana-Ambros Competition Division
Emerging competition issues can be described as scenarios where certain new market characteristics, changes in the conduct of companies or the behavior of consumers, or new public sector interventions in markets create a threat to competition. Emerging competition issues STRUCTURAL emerging competition issues Novel DEMAND-SIDE competition issues REGULATORY emerging competition issues CHANGE Technology External shocks Business innovation Public policy
The use of market studies may precede other enforcement actions and thus act as a beneficial ex-ante tool • Market studies can be forward looking, cover a broader set of issues, focus on the dynamic process of rivalry and proactively promote increase competition than can be done in enforcement • Market studies provide flexibility in the design of recommendations and these can potentially extend beyond a specific enforcement issue that has been analysed, where the analysis indicates that the same or similar issues apply to other firms or markets. • Market studies provide an opportunity for an authority to clarify that certain behavior may be found to infringe competition law, even if no specific instances have been identified during the study. Market studies are not without limitations • Recommended changes to legislation or regulation tend to be static in nature, and can take time to implement. • Recommendations issued by the majority of jurisdictions are not legally binding so there is a risk that some (or all) recommendations might not be implemented. • Market studies can also be costly and time consuming. Market studies as an ex-ante tool to tackle emerging competition issues
• Market studies can play a key preventive role in identifying and diagnosing emerging competition issues by exploring the different drivers and clarifying the options available to tackle them from a competition policy, competition enforcement, regulatory, or other policy perspective. • Two types of co-operation to consider when using the market study tool to tackle emerging issues. Co-operation considerations for the market study tool to tackle emerging issues effectively Cross-government agencies co-operation Not all problems identified in a market study can always be solved only using competition tools Cross-border co-operation between competition authorities and governments When emerging competition issues arise in markets that are global, this may require a closer cross-border cooperation
Thank you Patricia.BASCUNANA-AMBROS@oecd.org

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Using market studies to tackle emerging competition issues – OECD Secretariat – December 2020 OECD discussion

  • 1. GLOBAL FORUM ON COMPETITION 2020 USING MARKET STUDIES TO TACKLE EMERGING COMPETITION ISSUES Presentation by the Secretariat 10 December 2020 Patricia Bascunana-Ambros Competition Division
  • 2. Emerging competition issues can be described as scenarios where certain new market characteristics, changes in the conduct of companies or the behavior of consumers, or new public sector interventions in markets create a threat to competition. Emerging competition issues STRUCTURAL emerging competition issues Novel DEMAND-SIDE competition issues REGULATORY emerging competition issues CHANGE Technology External shocks Business innovation Public policy
  • 3. The use of market studies may precede other enforcement actions and thus act as a beneficial ex-ante tool • Market studies can be forward looking, cover a broader set of issues, focus on the dynamic process of rivalry and proactively promote increase competition than can be done in enforcement • Market studies provide flexibility in the design of recommendations and these can potentially extend beyond a specific enforcement issue that has been analysed, where the analysis indicates that the same or similar issues apply to other firms or markets. • Market studies provide an opportunity for an authority to clarify that certain behavior may be found to infringe competition law, even if no specific instances have been identified during the study. Market studies are not without limitations • Recommended changes to legislation or regulation tend to be static in nature, and can take time to implement. • Recommendations issued by the majority of jurisdictions are not legally binding so there is a risk that some (or all) recommendations might not be implemented. • Market studies can also be costly and time consuming. Market studies as an ex-ante tool to tackle emerging competition issues
  • 4. • Market studies can play a key preventive role in identifying and diagnosing emerging competition issues by exploring the different drivers and clarifying the options available to tackle them from a competition policy, competition enforcement, regulatory, or other policy perspective. • Two types of co-operation to consider when using the market study tool to tackle emerging issues. Co-operation considerations for the market study tool to tackle emerging issues effectively Cross-government agencies co-operation Not all problems identified in a market study can always be solved only using competition tools Cross-border co-operation between competition authorities and governments When emerging competition issues arise in markets that are global, this may require a closer cross-border cooperation