Competition, Regulation and Development

Presentation Transcript

Frederic Jenny

Cour de Cassation

Chair OECD Competition Committee

Professor of Economics ESSEC, France

CUTs Project Interim Meeting:

Advocacy and Capacity Building on Competition Policy and Law in Asia

16-17 August , Hanoi Vietnam

Issues to be addressed

Competition law enforcement, regulation and the
development dimension: a comparative static view
2) Different aspects of interactions between regulation and
competition in the development process: a dynamic view
3) The overlap between competition law enforcement and
regulations: practical problems
4) Managing the interface

1) Competition, Regulation and Development a Comparative Static View

Development Stage 1

Market Failures :Small scale, incomplete market, informal sector, externalities, information asymetries

Socio Political Goals: Growth, Fairness, Security, Independance,Environment vs Efficiency

Limited scope for competition law enforcement

Development Stage 2

As a result of growth: larger markets,

higher level of education and therefore

more market opportunities and fewer

market failures

Competition policy and competition law

enforcement play a more important role

2) Different Aspects of Interaction between Regulation and Competition in the Development Process: A Dynamic View

Development Stage 1

Development Stage 2

Overinclusive or Misguided Technical Regulation Can Unnecessarily Limit Competition

Ex Cambodia:

« (…) The reserve requirement is 8% for banks and 5% for micro-finance institutions. However in practice the banks must maintain 10% of capital as a form of guarantee. This ideal reserve increases bank’s operational cost and eventually increases consumer interest rate ».

Regulations Dictated by Socio-Political Goals Can Prevent Competitionand Development

EX: Cambodia:
- « Quantitative restrictions on
pharmaceutical products, gold, silver ornaments, ammunitions and various cultural and medical materials;
Regulation prohibiting imports of pork, motorbike tyres, right hand drive vehicles, used footwear
-Local level restrictions: ex in Preah
Vihear province the governor issued a regulation authorising only one person to conduct the sale of eggs ».

Competition Policy ( including Trade Liberalisation) Can Help Eliminate Political Regulations

Ex Cambodia:

« Cambodia has proactively integrated itself into regional and global markets. The country has become a member od Asean since april 1999 and agreed to gradually reduce tariff rates by 2010 under the AFTA schemes.

In September 2003, Cambodia was fully admitted to the WTO with a package of membership deal that include concessions and commitments to reduce tariffs of goods, open the service sector and comply with TRIPs »

Competition, Regulation and Development: A Dynamic View

Development Stage 1

Development Stage 2

Competition and Regulation

Organizing the interface

Advocating for Competition

Regulatory Reform

3) The Overlap Between Competition

Law Enforcement and Sectoral

Regulation: Practical Problems

The Goals of Sectoral Regulation and Competition Law Enforcement

Sectoral Regulation aims at:

-Structuring the market ( granting licenses) to establish competition ( if possible)

-Regulating firm performances ( rates, quantities, return) if competition cannot be established

- Promoting and monitoring efficiency

Competition Law Enforcement aims at:

- Preventing and sanctioning practices or transactions which might pervert pre-existing competition

Licensing

Competitors

Former monopolist

Dispute

settlement

Interconnection: price and conditions

Essential facility: fixed network

Abusively low prices

Squeeze ?

Subsidies

Preventing entry

Abusively high prices

Tying

Public service

Monopoly

Dominance

Competitive fringe

Tariffs of

public service

Subsidization of competitive activity

Frederic Jenny

Examples of Overlap Between the Regulatory and the Competition Enforcement Approaches

Licensing conditions

The number of licensees and the conditions of their licences will have an effect on the intensity of competition

Market definition and assessment of dominance:

by regulator to establish which operators must offer interconnection
by competition authority to establish if an operator abuses its market power

Pricing

Price set by regulators for interconnection will determine the extent of price competition (or lack of competition) at the downward level

Remedies

4) Managing the Interface

The Disenchantment of Latin Americans with Privatizations

Competition Authority Role in Sectoral Regulation

Advantages

Less risk of capture by some players
More consistency in the enforcement of competition law accross sectors
Intervention limited to the minimum

Drawbacks

- Slowness of response (because of quasi judicial procedures)

Risk of contamination of competition law enforcement in

other sectors

- Lack of technical expertise

- Risk of blurring the perception of the competition authority

No Unique Model

New Zealand : no sectoral regulation/ antitrust law

United States: from regulation to antitrust law

and back to sectoral regulation

Australia : integration of regulation and antitrust

Europe: the mandate driven division of labor

between sectoral regulators and competition

authorities

Frederic Jenny

Managing the Interface in a Mandate Driven Division of Labor Model: Tip 1

Think of the interface problem ahead of time (consistent and

comprehensive provisions in the competition law and in the

sectoral laws)

Example: Cambodia:

« The draft law on telecommunications is being prepared by

the Ministry of Posts and telecommunications of Cambodia

(…) Competition legislation has also been on the

government’s priority list to be drafted »

Will the laws be consistent?

managing the interface in a mandate driven division of labor model tip 2

Technical regulators must be independent from business interests or government influence

Example: Cambodia

« There is no independent regulator or policy-making body in the telecommunications sector since the MTPC is at the same time regulator and one of the market operators. Therefore there is often some sor of conflict of interests in favour of the state sector. For example, the MTPC issued a regulation banning the Voice-over-Internet- Protocol facility that offers oversea calls at very low costs. The reason behind the VoIP prohibition is simply that the VoIP facility would reduce state revenue from the telecom industry, which contributes as much to the State budget as any other sector »

managing the interface in a mandate driven division of labor model tip 3

Regularly review technical regulations to assess whether they are still needed or whether there would be more efficient ways to achieve their policy goals

managing the interface in a mandate driven division of labor model tip 4

The allocation of responsibilities between the competition authority and the technical regulators must be clear if there is a mandate driven division of labor ( avoid overlaps)

managing the interface in a mandate driven division of labor model tip 5

Ensure that there are no gaps (i.e. that competition law applies in the absence of sectoral regulation)

Example Cambodia:

« The absence of some important regulations and procedures has also limited the sope of competition in the banking sector »

managing the interface in a mandate driven division of labor model tip 6

Establish a procedure of transparent mutual consultation ( or joint decision making) on topics of common interest to the competition authority and the sectoral regulators