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LAW COMPETITION LAW Horizontal Agreements and Their Types

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LAW COMPETITION LAW Horizontal Agreements and Their Types LAW COMPETITION LAW Horizontal agreements and their types Q1: E-TEXT Module ID: 10 Horizontal Agreements and their types Module Overview: This module is an introductory module on horizontal agreements covered under the competition law. It will deal with the basics of horizontal agreements, types of such agreements, reasons for collusion by businesses and regulation of such agreements by the competition authority. It will also cover horizontal agreements like market allocation, controlling production and bid rigging. The module will also discuss cartelisation and the ways to detect and prevent cartelisation. Subject Name: Law Paper Name: Competition Law Module ID: 10 Pre-requisites: Competition law is an economic law and thus an understanding of various market structures like monopoly and oligopoly will help readers better understand the reasons for businesses colluding to gain market power. Basic knowledge about microeconomics will also help in appreciating the adverse effects the horizontal anticompetitive agreements can have on economy and consumers and the reasons for regulating such conduct. Objectives: After reading this module, the readers will be able to appreciate as to why the anticompetitive effects of the horizontal agreements and practices need to be regulated by the competition law. Further, the readers will learn regarding the different types of horizontal agreements. A reader will realise as to why cartels which are a form of horizontal agreements are given stern treatment under the competition laws worldwide. Further, the reader will also understand as to why there is more international convergence and consensus in dealing with hard-core cartels which have anticompetitive effects on consumers across the borders. Keywords: Cartels, horizontal agreements, price fixing, international cartels, bid rigging, leniency programme Module Introduction: Broadly for the purposes of the competition law, agreements between the market players may be classified as either horizontal or vertical. Horizontal agreements occur between the enterprises at the same level and have potential to adversely affect the competition if intended to do so. Cartels are one form of horizontal agreements which due to their pernicious effects on the competition consumers and the economy are the focus of the enforcement domain of the competition authorities worldwide. Learning outcomes: Through this module, the readers are expected to learn: Definition and nature of Horizontal Agreements Types of Horizontal Agreements Cartels, bid rigging, price fixingagreements Detecting cartels Leniency programme to detect cartel 1. Agreements in restraint of trade A restraint of trade is simply some kind of agreed provision that is designed to restrain another's trade or prohibiting agreements that ran counter to public policy, unless the reasonableness of an agreement could be shown.One of the earliest instances of trade restraints has been recorded in the English Common Law system in the doctrine of ‘Restraint of Trade’ which became the precursor to modern competition law. There is always a possibility that market players can coordinate their actions to achieve a position so that they can indulge in anticompetitive practices. Thus the firms can collude and control production and raise prices. Collusion can be defined as a situation where firms coordinate their actions to reach anti-competitive outcomes and gain higher profits. Collusion can be explicit or tacit. Some anticompetitive agreements may be open, but most are secret. Sometimes they can be in form of less formal agreements and can also form part of “agreement between companies” or in the decisions or rules of professional associations. As depicted belowi, there is a strong linkage between competition law, and economic development of a country. Thus control of anticompetitive practices including horizontal anticompetitive agreements lead to economic welfare. Figure 1: Competition Law, Policy and Economic Development (Source: UNCTAD (2010)) 1. Horizontal Agreements Horizontal agreements are those between competitors, i.e., entities at the same level of distribution. Vertical agreements are those between parties on different levels of the chain of distribution, such as between a manufacturer and a distributor, or between a wholesaler and a retailer. Agreements through which restraints are imposed between competitors have traditionally been denominated as horizontal agreements, and those imposed by agreement between firms at different levels of distribution as vertical agreements.Horizontal agreements can prompt violations of competition law because such agreements may include clauses which restrict competition. It can be said that all anticompetitive effects are of necessity horizontal, since all competition is horizontal, but that such horizontal effects can result from either horizontal or vertical agreementsii. Figure 2 depicts the horizontal and vertical relation between different players in tyre market. Rubber Supplier HORIZONTAL Rubber Supplier V V E Tyre HORIZONTAL Tyre Manufacturer E R Manufacturer R T T I I C C A Tyre Wholesaler Tyre Wholesaler HORIZONTAL A L L Retail shop HORIZONTAL Retail shop Figure 2: Horizontal & Vertical relation between market players From the figure 2, it is clear that the vertical agreements are between firms in a purchaser–seller relationship, whereas, the horizontal agreements are between the competitors. Generally it has been seen that vertical agreements are givena lenient treatment than the horizontal agreements under the provisions of the Competition law. The reason for such differential treatment is that the horizontal agreements are more likely to reduce competition than the vertical agreements. Horizontal agreements like price fixing and market sharing are agreements which by their nature are almost always considered detrimental to the competition. Generally, horizontal agreements are synonymously referred to as cartels in competition law terminology across the world. 2. Typology of Horizontal Agreements There can be innumerable ways in which market players interact and conduct their business in a market. Collusion in form of horizontal agreements can take various forms. It is pertinent to discuss here the major ways in which market players indulge in horizontal anticompetitive agreements. a. Price fixing Agreements through which the companies mutually set the prices that they want to charge in the market are called price fixing agreements. Imagine a market where four firms manufacturing cement agree to sell their products at a fixed price. Although, sometimes a slight increase in the price of each product hardly matters to a consumer;such price fixing will ultimately generate huge profits for the colluders. Other types of price-fixing agreements include agreements that jointly predetermine the size of profit margins, the extent of discounts andthe level of price increases. Price fixing agreements can take various forms including the following: Agreement on price increase Agreement to adhere to published prices Agreement not to sell unless it is on the agreed price terms Agreement on a standard pricing formula Agreement regarding providing, eliminating or establishing methodof providing discounts Agreement on credit terms that will be offered to customers Agreement to eliminategoods and services offered at low prices from the market, thereby limiting supply and raising the prices Agreement between cartel members not to change or reduce prices without notifying each other As is evident from the nature and objectives of the price fixing agreements described above, such horizontal anticompetitive agreements are aimed at furthering the goal of members of the cartelof earning huge profits at the expense of the consumers. b. Market Sharing Another common horizontal agreement amongst competitors is market sharing. These are also called market allocation and market division agreements. Under such agreements, the competitors agree to divide amongst themselves specific territories, customers, or products. Such market allocating actions are restrictive in nature because they leave no room for competition in the market. For example, an agreement amongst competitors to allot certain customers to particular sellers and toallocate or divide sale territories would be anticompetitive. Trucking Cartel in India Eliminating competition in the market by fixing the freight rates without liberty to the members of the truck operator union to negotiate freight rates individually is common in the trucking industry in India. The M.R.T.P. Commission passed ‘Cease & Desist’ order against Bharatpur Truck Operators Union (order dated 24.8.1984 in RTP Enquiry No.10/1982), Goods Truck Operators Union, Faridabad, (order dated 13.12.1989 in RTP Enquiry No.13.13.1987, Rohtak Public Goods Motor Union (order dated 25.8.1984 in RTP Enquiry No.250/10983. In the absence of any penalty provision, however, no fines could be imposed. As readers will observe in later modules, under new competition regime in India heavy penalty can be imposed for cartel behaviour. Source: Competition Commission of Indiawebsite (www.cci.gov.in) c. Bid-rigging Bid rigging takes place when bidders collude and keep the bid amount at a pre-determined level. Such pre-determination is by way of intentional manipulation by the members of the bidding group. Bidders could be actual or potential ones but they collude and act in concert. Bid rigging is the way that conspiring competitors effectively raise prices where
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