Thus, the nondiscretionary approach attempts to preserve conditions of WORKABLE COMPETITION by a direct attack on the possession and exercise of monopoly power as such.
By contrast, the discretionary approach takes a more pragmatic line, recognizing that often high levels of seller concentration and certain agreements between firms may serve to improve economic efficiency rather than impair it. It is the essence of the discretionary approach that each situation be judged on its own merits rather than be automatically condemned. Thus, under the discretionary approach, mergers, restrictive agreements and specific practices of the kind noted above are evaluated in terms of their possible benefits and detriments. If, on balance, they would appear to be detrimental, then, and only then, are they prohibited.
The USA by and large operates the nondiscretionary approach; the UK has a history of preferring the discretionary approach, while the European Union combines elements of both approaches. See COMPETITION POLICY (UK), COMPETITION POLICY (EU), PUBLIC INTEREST, WILLIAMSON TRADE-OFF MODEL, OFFICE OF FAIR TRADING, COMPETITION COMMISSION, RESTRICTIVE PRACTICES COURT, HORIZONTAL INTEGRATION, VERTICAL INTEGRATION, DIVERSIFICATION, CONCENTRATION MEASURES.
competition policy (EU) covers three main areas of application under European Union’s COMPETITION LAWS:
(a) CARTELS. Articles 85(1) and (2) of the Treaty of Rome prohibit cartel agreements and ‘CONCERTED PRACTICES’ (i.e. formal and informal collusion) between firms, involving price-fixing, limitations on production, technical developments and investment, and market sharing, whose effect is to restrict competition and trade within the European Union (EU). Certain other agreements (for example, those providing for joint technical research and specialization of production) may be exempted from the general prohibition contained in Articles 85(1) and (2), provided they do not restrict inter-state competition and trade;
(b) MONOPOLIES/MARKET DOMINANCE. Article 86 of the Treaty of Rome prohibits the abuse of a dominant position in the supply of a particular product if this serves to restrict competition and trade within the EU. What constitutes ‘abusive’ behaviour is similar to the criteria applied in the UK, namely, actions that are unfair or unreasonable towards customers (e.g. PRICE DISCRIMINATION between EU markets), retailers (e.g. REFUSAL TO SUPPLY) and other suppliers (e.g. selective price cuts to eliminate competitors). Firms found guilty by the European Commission of illegal cartelization and the abuse of a dominant position can be fined up to 10% of their annual sales turnover;
(c) MERGERS/TAKEOVERS. The Commission can investigate mergers involving companies with a combined world-wide turnover of over €5 billion (£3.7 bn) if the aggregate EU-wide turnover of the companies concerned is greater than €250 million. Again, the main aim is to prevent mergers likely adversely to affect competition and trade within the EU.
These thresholds still apply generally, but in 1998 they were reduced to €3.5 billion and €100 million, respectively, for mergers affecting the competitive situation in three (or more) EU countries in cases where the combined turnover of the companies exceed €25 million in each of the three countries.
Generally, where EU competition laws apply, they take precedence over the national competition laws of member countries. However, a subsidiarity provision can be invoked, which permits the competition authority of a member country to request permission from the EU Competition Directorate to investigate a particular dominant firm or merger case if it appears that the ‘European dimension’ is relatively minor compared to its purely local impact.
competition policy (UK) covers six main areas of application under UK COMPETITION LAWS:
(a) MONOPOLIES/MARKET DOMINANCE. The COMPETITION ACT 1998 prohibits actions that constitute the ‘abuse’ of a dominant position in a UK market. The OFFICE OF FAIR TRADING (OFT) is responsible for the referral of selected goods and services monopolies (both private and public sectors) to the COMPETITION COMMISSION for investigation and report and the implementation (where it sees fit) of the Commission’s recommendations.
A dominant position is defined as a situation where one firm controls 40% or more of the ‘reference’ good or service. (Under previous legislation, market dominance was defined in terms of a 25% market share). Abuse consists of acts that are harmful to the interests of consumers and other suppliers, e.g. charging excessive prices to secure monopoly profits and imposing restrictive terms and conditions on the supply of goods (see EXCLUSIVE DEALING, TIE-IN SALES, etc). The term ‘abuse’ can be broadly equated with that of conduct contrary to the ‘public interest’ – the benchmark used in previous legislation.
Defining the ‘reference’ market to establish evidence of market dominance can be problematic since it raises the issue of how widely or narrowly the boundaries of ‘the market’ are to be delineated (see MARKET, MARKET CONCENTRATION). Thus, the drinks market could be divided as between alcoholic and non-alcoholic drinks, and further divided into sub-markets as between, for example, the various types of alcoholic drink – the beer/lager market, spirits market, wine market, etc. Establishing abuse can also be a ‘grey area’. For example, high prices and profits may be condoned because they reflect exceptional innovation; on the other hand, low profits may not be a sign of effective competition but reflect the fact that the firm is grossly inefficient;
(b) ANTI-COMPETITIVE AGREEMENTS/RESTRICTIVE TRADE AGREEMENTS. The Competition Act 1998 prohibits outright agreements between firms (i.e. COLLUSION) and CONCERTED PRACTICES that prevent, restrict or distort competition within the UK. The Office of Fair Trading is responsible for monitoring ‘suspected’ cases of firms operating agreements illegally and can refer them for further investigation by the Competition Commission. The prohibition applies to both formal and informal agreements, whether oral or in writing, and covers agreements that involve joint price-fixing and common terms and conditions of sale, market-sharing and coordination of capacity adjustments, etc. (Under previous legislation it was possible to obtain exemption from prohibition if it could be demonstrated that an agreement conferred ‘net economic benefit’ – see RESTRICTIVE TRADE PRACTICES ACTS, RESTRICTIVE PRACTICES COURT.)
Although anti-competitive agreements are technically illegal, nonetheless there is much evidence that many such agreements have been driven ‘underground’ and are continuing to be operated in secret. This problem has been addressed by the authorities in encouraging ‘whistleblowers’ to come forward and supply them with information about illegal activities and also provisions in the Competition Act 1998 that allow officials to enter business premises without warning and to seize incriminating documentation. Under the ENTERPRISE ACT 2002, participation in illegal agreements has now been made a criminal offence, punishable by imprisonment;
(c) MERGERS AND TAKEOVERS. Originally, under the FAIR TRADING ACT 1973, the Office of Fair Trading (OFT), acting alongside the Secretary of State for Industry, could refer mergers and takeovers to the Competition Com-mission for investigation and report where (1) the combined firms already had or would have had a market share of 25% or over in a ‘reference’ good or service; (2) the value of assets being combined exceeded £70 million. Clause (1) effectively covered horizontal mergers and takeovers (see HORIZONTAL INTEGRATION) and clause (2) vertical and conglomerate mergers and takeovers (see VERTICAL INTEGRATION, DIVERSIFICATION/CONGLOMERATE INTEGRATION). Under the ENTERPRISE ACT 2002, the OFT was given sole responsibility for merger/takeover references but subject to an appeals procedure in disputed cases (see COMPETITION APPEALS TRIBUNAL).
Mergers and takeovers nowadays are mainly evaluated in terms of their likely competitive effects. Unlike in dealing with established monopolies, where past conduct can be scrutinised to establish harmful effects, mergers and takeovers are about the future, and predicting the likely future effects of a merger/takeover is problematic. Faced with this difficulty, the Commission tends to ‘play safe’ and recommend the blocking of most mergers/takeovers that reduce competition by significantly increasing the level of MARKET CONCENTRATION;
(d) RESALE PRICE MAINTENANCE (RPM). Manufacturers’ stipulation of the resale prices of their products is generally prohibited in the UK, although under the RESALE PRICES ACTS it