Peter L. Ormosi

Assessing Competition Policy: Methodologies, Gaps and Agenda for Future Research

Research by academics and competition agencies on evaluating competition policy has grown rapidly during the last two decades. This paper surveys the literature in order to (i) assess the fitness for purpose of the main quantitative methodologies employed, and (ii) identify the main undeveloped areas and unanswered questions for future research. It suggests that policy evaluation is necessarily an imprecise science and that all existing methodologies have strengths and limitations. The areas where the need is most pressing for further work include: understanding why Article 102 cases are only infrequently evaluated; the need to bring conscious discussion of the counterfactual firmly into the foreground; a wider definition of policy to include success in deterrence and detection. At the heart of the discussion is the impact of selection bias on most aspects of evaluation. These topics are the focus of ongoing work in the CCP.

A tip of the iceberg? The probability of catching cartels

SUMMARY Reliable estimates of crime detection probabilities could help in designing better sanctions and improve our understanding of the efficiency of law enforcement. For cartels, we only have limited knowledge on the rate at which these illegal practices are discovered. In comparison to previous works, this paper offers a more parsimonious and simple‐to‐use method to estimate time‐dependent cartel discovery rates, while allowing for heterogeneity across firms. It draws on capture–recapture methods that are frequently used in ecology to make inferences on various wildlife population characteristics. An application of this method provides evidence that less than a fifth of cartelising firms are discovered. Copyright

Mergers after Cartels: How Markets React to Cartel Breakdown

This paper examines whether cartel breakdown provokes a period of intensive merger activity amongst the former cartelists, designed to re-establish tacit collusion. Using a novel application of recurrent event survival analysis for a pooled sample of 84 European cartels, it …finds that mergers are indeed more frequent post-cartel breakdown, especially in markets which are less concentrated. However, it cautions against merely assuming that these mergers are motivated by coordinated effects - alternatively, they may be the consequence of market restructuring, necessitated by more intense competition post-cartel. Further disaggregated analysis of the individual mergers show that on average these mergers are profi…table for the acquiring company, and that the tacit collusion motive is likely to be at work for a large minority of the mergers.

Tactical Dilatory Practice in Litigation: Evidence from EC Merger Proceedings

The economic analysis of delay in legal procedures has received considerable attention in the past. Most of these works focus on the determinants of delay in litigation but very little analysis has been dedicated to examining tactical delay caused by the parties to the litigation. This paper offers an empirical example to fill some of this gap by analysing strategic delay in pre-trial administrative litigation. The paper shows that in European merger litigation parties may decide to tactically challenge discovery attempts, which causes a delay that is strategically used to gain more time to settle the case and to avoid a lengthy in-depth investigation, similar to the prediction of Miceli’s (1999) theoretical model. This type of delay can be beneficial to merging parties and to society as well. August 2011

Quantifying the deterrent effect of anti-cartel enforcement

Evaluations of the consumer harm caused by cartels are typically partial because they do not attempt to quantify the impact of deterrence, or acknowledge that the CA does not root out all anti-competitive cases. This paper proposes a broader framework for evaluation which encompasses these unobserved impacts. Calibration of this framework is challenging because one cannot rely on estimates for cases which have been observed to make deductions about those that have not - an example of the classic sample selection problem which is endemic across much of the empirical Industrial Organisation literature. However, we show how empirical findings, already available in the existing literature, can be plugged into a Monte Carlo experiment to establish bound estimates on the magnitudes of cartel-induced consumer harm. Lower bound (i.e. cautious) estimates suggest that (i) the harm detected by the CA really is only the tip of the iceberg, accounting for only a small fraction (at most one sixth) of total potential harm; (ii) deterrence is at least twice as effective as detection as a means for removing harm; and (iii) undetected harm is at least twice as large as detected harm. Under less cautious, but very plausible, assumptions, all three effects could be much greater than this.

The Deterrent Effect of Anti-Cartel Enforcement: A Tale of Two Tails

This paper investigates the deterrent impact of competition enforcement on cartels. It is shown theoretically that if enforcement is effective in deterring and constraining cartels then there will be fewer cartels with low overcharges and fewer with high overcharges. This prediction provides an indirect method for testing whether the enforcement of competition law is proving effective. Using historical data on legal cartels to generate the counterfactual, we find significantly less mass in the tails of the overcharge distribution, compared to the distribution for illegal cartels. This result is robust to controlling for confounding factors, and although further work is desirable, we interpret this as the first tentative confirmation of effective deterrence.

What Can Merger Retrospectives Tell Us? An Assessment of European Mergers

In this review of retrospective European merger studies we provide a discussion of the price effect of analysed mergers and examine whether the antitrust agency made the right decisions. We find that remedied mergers, on average, were not followed by a price-increase, suggesting that, in our sample, merger interventions were effective at eliminating problems. High market concentration was more likely to lead to higher post-merger prices, although remedies were able to reduce post-merger price-increases, even in concentrated markets. We look at a number of reasons why prices may increase post-merger and find little evidence of genuine agency errors.

Are All Mergers Equally Delay-Averse? An Empirical Analysis of Procedural Delay in European Commission Merger Cases (1999-2008)

This article looks at the distribution of two EC merger procedural events and examines the effect of the indefinite-length suspension of merger investigations. Although the ECMR refers to the suspension of investigations as an exceptional instrument, it is used in a high proportion of cases. As the ECMR does not set a time limit for suspension, it can lead to significant delay in the assessment of mergers. To understand the causes of delay, this article relies on the fact that the suspension of the investigation is a consequence of merging parties’ failure to provide the necessary information to the Commission. Two main causes of this behaviour are identified. Firstly, merging parties may decide to intentionally withhold information in order to cause the suspension of the investigation, which allows them more time to do whatever is necessary to avoid a lengthy second phase investigation. Secondly, failure to provide the required information to the Commission may be a result of merging parties’ negligence towards the regulatory assessment of their merger. Whereas the first case may be socially beneficial, identifying the second type of behaviour may help in filtering out inefficient mergers.

Selection Bias in Evaluating Policy: The Case of Anti-Trust

Evaluations of competition policy are increasingly common and typically establish that consumer benefits from detected cases easily outweigh the costs of competition authorities (CA). However, such assessments are often driven by data availability and only capture a small part of the total impact because they sidestep the difficult issue of how to evaluate deterrence. Similarly, they ignore the fact that policy does not root out all anti-competitive cases. This paper suggests a broader framework for evaluation which encompasses these unobserved impacts. Calibration is difficult precisely because we cannot rely on empirical observations on cases which have been observed to make deductions about cases which have not (because they are deterred or undetected). It thereby confronts the classic sample selection problem which is endemic in all studies based on data from CA decisions. Drawing on insights from economic theory, it argues that selection bias is likely to be substantial because the unobserved cases could well be those which are most harmful. If so, the deterrence of anti-competitive mergers may have a much greater positive impact, but the effects of non-detected cartels may be more serious than is usually supposed.Evaluations of competition policy typically establish that consumer benefits from cases detected and rectified comfortably outweigh the costs of competition authorities (CA). However, such assessments are inevitably partial because they do not quantify the impact of deterrence, nor do they acknowledge that the CA does not root out all anti-competitive cases. This paper proposes a broader framework for policy evaluation which encompasses these unobserved impacts. Calibration is difficult because one cannot rely on estimates for cases which have been observed to make deductions about those that have not - an example of the sample selection problem which is endemic across much of the empirical Industrial Organisation literature. However, we show how economic theory can be used to at least narrow down the range to plausible bounds on the magnitudes of how much harm is deterred and how much remains undetected. It also establishes what are the key issues to be resolved in our future empirical research in order to narrow the ranges still further.

Determinants of the Success of Remedy Offers: Evidence from European Community Mergers

This article proposes an empirical method for finding the determinants of the size of remedy offers relative to the level required by the European Commission in individual cases. Evidence is presented that merger characteristics, such as the size of the transaction, or the number of horizontal overlaps do not affect the probability of a remedy offer being successful. It is also shown that pre-merger expectations about merger-generated efficiencies increase the likelihood of successful offers. These findings are very important features of EC merger control, and a novelty in the existing literature. If parties are delay-averse, then the complexity of the case matters very little, as merging parties appear to be able to offer something outright acceptable for the Commission. This may lead to a counter-productive situation where less delay-averse mergers become more prone to offering too much, which can result in over-fixing the competition problem for those mergers where savings would be more likely.