Joe Harrington “A Proposal for a Structural Remedy for Illegal Collusion“ Antitrust Law Journal, Forthcoming

The argument of this paper – which can be found here – is straightforward: competition authorities should use a structural remedy when penalising some cartels. The remedy would force cartel member(s) to sell productive assets to other firms for the purpose of making the market more competitive.  Given the people the author thanks, and the example he provides, I believe this was inspired by the recent Brazilian experience. The paper begins with an overview of developments in cartel sanctions over the last 30 years, including: (i) the adoption of leniency programs, (ii) a marked increase in the amount of pecuniary penalties, and (iii) the imposition of criminal sanctions. However, ‘Even if all of these developments have resulted in substantial progress in the fight against cartels, the evidence is that current enforcement falls well short of being an effective deterrent. Many cartels continue to form and operate (…). Furthermore, many of these cartels are not the product of rogue employees but…

Yannis Katsoulacos, Evgenia Motchenkova and David Ulph “Penalizing on the basis of the severity of the offence: A sophisticated revenue-based cartel penalty”

The literature on the optimal design of antitrust monetary penalties has identified four main sanctions’ regimes: damages-based, illegal gains-based, revenue–based and overcharge–based. This paper – which can be found here – analyses an alternative (fifth) regime: a sophisticated revenue-based penalty regime, in which the penalty-base is the revenue of the cartel but the penalty rate depends on (and increases with) the cartel overcharge rate. The operating assumption is that a penalty regime is better if it easier to implement, it generates less legal uncertainty, and it has a superior overall welfare impact. The authors find that, unfortunately, regimes that are superior in terms of their welfare properties are not superior (and may be inferior) in terms of the other assessment criteria we mentioned above. Their argument is that, if one takes into account a number of policy concerns other than welfare-maximisation, the sophisticated revenue-based approach emerges as a superior alternative The paper is structured as follows: Section 2 provides a…

John Connor ‘Cartels Costly for Consumers’

This working paper – which can be found here – focuses on recent trends in cartels worldwide, with a special emphasis on the economic injuries generated by illegal collusion. The basic argument is that the harm caused by cartels is immense; and that global antitrust fines for discovered international cartels were less than 1% of the economic injuries sustained (my emphasis). The data is derived from his Private International Cartels (PIC) database; in particular, he examined a sample of more than 1100 private international cartels that were discovered between January 1990 and the middle of 2015. It leads to a number of findings: The number of discovered cartels across the world has consistently increased over the last 25 years. This trend is likely related to the increasing number of jurisdictions that  have adopted competition rules and created competition agencies during this period. Affected commerce (i.e. estimates of the dollar value of commerce controlled by these cartels)  are available for about…

RBB Brief 54 ‘An innovative leap into the theoretical abyss: Dow/DuPont and the Commission’s novel theory of harm’

This paper contradicts the paper below. It describes how, in Dow/DuPont, the Commission  adopted an innovation theory of harm that is based on a much broader concern than before: namely, that the parties would find it profitable to reduce overall R&D investments post-merger, causing a reduction in the number of innovative pesticide products (as yet unidentified) at some unspecified time in the future.  It then describes the old approach of the Commission, which was concerned with late stage pipeline products. It notes that the assessment of: “a pipeline product (for which practically all the innovation work has been done) and an existing product is substantively no different to the assessment of a merger between two already existing products. In both of these cases, the concern is that the internalisation of the constraint between the rival products may give the merged entity an incentive to increase prices or reduce output, perhaps even discontinuing one of the products altogether to avoid cannibalisation of…

Giulio Federico, Gregor Langus, Tommaso Valletti “A simple model of mergers and innovation” (2017) CESifo Working Paper Series 6539, CESifo Group Munich

This paper, while simple, has some significant (and charged) conclusions. They purport to demonstrate that: (i) merging parties always decrease their innovation efforts post-merger while outsiders to the merger respond by increasing their effort; (ii) a merger tends to reduce overall innovation; (iii) consumers are always worse off after a merger; (iv) the model calls into question the applicability of the ‘‘inverted-U’’ relationship between innovation and competition to a merger setting. The argument goes as follows: A merger between competitors affects the incentives to innovate through two channels: (i) the first channel relates to the (negative) externality that innovation by one firm has on its rival firms. A merger allows the merging parties to partially internalize this innovation externality and thus it lowers the incentives to innovate for the merged firm; (ii) the second channel relates to product market competition. This is relaxed after the merger so that profits increase both when firms do and do not innovate. A highly stylized…

Wolfgang Kerber and Benjamin R. Kern ‘Assessing Innovation Effects in US Merger Policy’ (2016) Journal of Industry, Competition and Trade 16(3) 37

This paper presents the results of a (quantitative) empirical study on how the US antitrust authorities assessed mergers in regard to their innovation effects from 1995 to 2008. It is structured as follows: Section 2 contains a brief overview of the theoretical and empirical literature in economics about innovation effects. The particular characteristics of innovation processes – which lead to the unpredictability of outcomes arising from innovation processes, and the possibility that important (even revolutionary) innovations can emerge entirely unexpected from anywhere – have raised the question of whether policy-makers have enough knowledge about the determinants of innovation to adopt policy instruments for promoting innovation. The paper also covers the Arrow-Schumpeter-Aghion debate on the relation between competition and innovation, which I am not going to repeat here. More interestingly, the authors review the model-theoretic literature about the relation between competition and innovation, and distinguish between different groups of models. In the first group of modles, the innovation incentives of firms are…

Rachel Brandenburger, Logan Breed and Falk Schöning ‘The Role of Innovation in Merger Control’ (2016) CPI July (1)

This paper argues that role of innovation in merger control is a hot topic because “recent statements and enforcement actions on both sides of the Atlantic reflect the agencies’ growing emphasis on innovation in their merger investigations and decisions”. The paper provides an overview of these developments. The paper begins by providing an overview of the context in which this increased focus on innovation is taking place. First, because technological development is now fundamental to business success in so many industries, assessing the impact of mergers on innovation now plays a key role in merger control. Second, innovation is at the heart of wider policies, such as the “Europe 2020 strategy” and the US’ “Strategy for American Innovation”. The paper then moves to the more interesting topic of how innovation has been taken into account in practice by enforcement agencies. In Europe, the European Commission has focused on the effects of a merger on innovation in a number of decisions…