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Legal Cartels LEGAL Lilian T CARTELS .D. Petit Lilian T.D. Petit LEGAL CARTELS L.T.D. Petit ISBN: 978-94-6361-014-8 Layout and printing: Optima Grafische Communicatie, Rotterdam, The Netherlands LEGAL CARTELS Legale kartels Proefschrift ter verkrijging van de graad van doctor aan de Erasmus Universiteit Rotterdam op gezag van de rector magnificus Prof.dr. H.A.P. Pols en volgens besluit van het College voor Promoties. De openbare verdediging zal plaatsvinden op vrijdag 8 december 2017 om 13.30 uur Lilian Titia Dymphna Petit geboren te Naarden Promotiecommissie: Promotoren: Prof.dr. J. van Sinderen Prof.dr. P.A.G. van Berg eijk Overige leden: Prof.dr. A.R. Thurik Prof.dr. E. Dijkgraaf Prof.dr. M.C. Mikkers RA Voor mijn ouders Contents List of figures 9 List of tables 10 List of acronyms 11 1 INtroDUctioN 1.1 Background 13 1.2 Research question 16 1.3 Research sub-questions 20 1.4 Basis: the cartel register 23 1.5 Focus 26 1.6 Methodology 28 1.7 Related literature 30 1.8 Structure of thesis 32 2 HOW the tortoise BecaME A hare 2.1 Introduction 37 2.2 Cartels and cooperation (1930–1950) 39 2.3 Modification (1951–1958) 42 2.4 Institutional inertia (1959–1986) 47 2.5 Transformation (1987–1998) 52 2.6 The new competition policy 56 2.7 Concluding remarks 57 2.8 Appendices 58 3 The DUtch cartel collectioN IN the TWENtieth ceNTURY 3.1 Introduction 61 3.2 Before the cartel register 62 3.3 The cartel register 64 3.4 The competition law of 1998 79 3.5 Discussion 79 3.6 Appendices 81 7 Contents 4 Cartels AND proDUctiVitY groWth 4.1 Introduction 83 4.2 Literature 85 4.3 Specification and methodology 87 4.4 The cartel register of the Netherlands 90 4.5 Data 92 4.6 Empirical results 97 4.7 Conclusion and discussion 100 4.8 Appendices 101 5 A ForMUla For DUraBle cartels 5.1 Introduction 107 5.2 Literature review 108 5.3 Variables explaining duration 117 5.4 Model and data 127 5.5 Results 134 5.6 Conclusions 142 5.7 Appendices 144 6 SUMMarY AND CONclUsioN 6.1 Findings 150 6.2 Avenues for further research 153 7 Data appeNDIX: CODING the DUtch cartel register 7.1 Introduction 155 7.2 Source 156 7.3 Scope 158 7.4 Variables and methodology 163 7.5 Remarks on the process 173 7.6 Appendices 177 REFereNces 189 NeDerlaNDse saMENVattiNg 199 CUrricULUM Vitae 205 PhD portFolio SUMMarY 207 8 List of figures Figure 1.1: Cartel framework, the Netherlands 15 Figure 1.2: Existing academic literature with cartel data from the legal-cartel era covering the Dutch economy, problems and solution 17 Figure 1.3: Today – The iceberg 24 Figure 1.4: Before – The inverted iceberg 24 Figure 1.5: Focus of the thesis 27 Figure 1.6: Position in literature 30 Figure 1.7: Outline 33 Figure 2.1: Timeline of the different competition acts in the Netherlands 39 Figure 3.1: Number of active agreements reported in the cartel register and entry and exit of agreements 70 Figure 3.2: Frequency of restrictive elements by type, 1961 – 1981 72 Figure 3.3: Frequency of restrictive elements by type, 1980 – 1998 73 Figure 4.1: Number of active cartels in the Netherlands from 1982 until 1998 94 Figure 4.2: Cartel entry (l.h.s.) and cartel exit (r.h.s) in the Netherlands from 1982 until 1998 95 Figure 4.3: Total factor productivity growth per industry in the Netherlands 102 Figure 5.1: Histogram of cartel duration 130 Figure 5.2: Kaplan-Meier survivor estimate for duration in years 131 Figure 5.3: Kaplan-Meier survival estimate for dummy variables 135 Figure 5.4: Percentage of annual GDP growth in the Netherlands 144 Figure 6.1: Construction of thesis 150 Figure 7.1: Visit Archives Winschoten 157 Figure 7.2: Selection of documents 159 Figure 7.3: Single-file versus multiple-file cartels 161 Figure 7.4: Contribution to the cartel register dataset 164 Figure 7.5: Bottom-level and top-level encoding of nature 172 9 List of tables Table 1.1: Methodologies per chapter 28 Table 3.1: International cartels including the Netherlands during the interwar period 63 Table 3.2: Dutch registered cartels classified by industry (1961; 1971; 1981) and two most common restrictive elements 75 Table 3.3: Dutch registered cartels classified by NACE industry 1980–1998 77 Table 3.4: Primary data compared to secondary data 81 Table 3.5: Comparison of the number of cartels adjusted for exit 1989–1992 81 Table 4.1: Summary statistics of the year-industry cartel entry and exit dummy 1982–1998 96 Table 4.2: Summary statistics of TFP growth (sorted by cartel entry; cartel exit; cartel presence) 1982–1998 97 Table 4.3: Regression of TFP growth in the Netherlands 1982–1998 98 Table 4.4: Overview of industries subject to scrutiny 101 Table 4.5: Correlation matrix of variables which are included in the regression 105 Table 5.1: Overview of comparable cartel duration explanatory analyses, sorted by mean duration 111 Table 5.2: Overview cartel duration explanatory variables 114 Table 5.3: Variables in this research 117 Table 5.4: Descriptive statistics 132 Table 5.5: Regression results on cartel duration in years 138 Table 5.6: Regression results on cartel duration in years 140 Table 5.7: Correlation matrix explanatory variables 145 Table 5.8: Reduced model based on two-digit industries and including outliers 147 Table 7.1: Terminology 158 Table 7.2: Reoccurring questions from cartel application form 162 Table 7.3: Success rate checking relevant industry 166 Table 7.4: Success rate checking starting date 167 Table 7.5: Success rate checking closing dates 168 Table 7.6: Success rate checking number of participants 169 Table 7.7: People involved in constructing the legal-cartel dataset 174 Table 7.8: Variables, construction and verification 174 Table 7.9: Expert informants 175 Table 7.10: Distributions of duration and registered number of cartel participants 187 10 List of acronyms ACM = Autoriteit Consument en Markt (Netherlands Authority for Consumers and Markets) CAS = Centrale Archief Selectiedienst (Central Archive Selection service) CBS = Centraal Bureau voor de Statistiek (Statistics Netherlands) CEM = Commissie Economische Mededinging (Committee for Economic Competition) CPB = Centraal Planbureau (Netherlands Bureau for Economic Policy Analysis) DCEV = Data collection, encoding and verification ECSC = European Coal and Steel Community ECU = European Currency Unit EEC = European Economic Community EEG = Europese Economische Gemeenschap (European Economic Community) EU = European Union GDP = Gross Domestic Product GGDC = Groningen Growth and Development Centre GWB = Gesetz gegen Wettbewerbsbeschränkungen (Act against restraint of competition) ISIC = International Standard Industrial Classification NACE = Nomenclature statistique des activités économiques dans la Communauté européenne (Statistical Classification of Economic Activities developed in the European Community) NMa = Nederlandse Mededingingsautoriteit (Netherlands Competition Authority) OECD = Organisation for Economic Cooperation and Development SBI = Standaardbedrijfsindeling (Standard business classification) SER = Sociaal Economische Raad (Social Economic Council) SPO = Vereniging van Samenwerkende en Prijsregelende Organisaties in de Bouwnijverheid (As- sociation for co-operative and price arranging organizations in the construction industry) TEC = Treaty establishing the European Community TFEU = Treaty on the Functioning of the European Union TFP = Totale Factor Productiviteit (Total Factor Productivity) VwEU = Verdrag betreffende de werking van de Europese Unie (Treaty on the Functioning of the European Union) WEM = Wet Economische Mededinging (Economic Competition Act) 11 1 Introduction This thesis studies the impact, determinants, organization, internal dynamics and characteris- tics of Dutch cartels during a period in which most cartels were legal. The terminology “legal cartels” might raise the reader’s eyebrows because presently, private cartels are illegal in indus- trial countries. This is in line with the mainstream view that cartels are harmful for economic welfare. Cartels put three types of economic efficiencies at risk. First, allocative efficiencies are jeopardized because prices will be higher due to a cartel, while output is lower than in competi- tive markets. Second, productive inefficiency may arise because colluding firms are to a lesser extent challenged to operate efficiently.A nd third, cartels reduce the incentives to innovate. Legal cartels are thus presently the exception rather than the rule. Yet, for two thirds of the 20th century, most cartels were legal in the Netherlands. From 1935 until 1998, Dutch competition laws explicitly permitted the creation of domestic cartels. Only those cartels that conflicted with public interests could be prohibited. In this thesis, the period from 1935 until 1998 is referred to as ‘the legal-cartel era’. This era was full of business agreements, intra- firm cooperation and corporatist features. Cartel agreements were sometimes considered as being in the best interest of the Dutch economy. The government recognized several merits of cartels, including the protection of (firms of) the Dutch economy to destructive competition. For over sixty years cartels controlled the very lives of all Dutch: from sauerkraut to sugar, and from drugstores to driving schools. Up to 1958 (the year of the establishment of the EEC) the Dutch policy could be practiced without major international interference. Although the EEC (and EU from 1992) prohibited cartels as of 1958, it was only in 1998 that the Netherlands incorporated the EEC/EU prohibition principles in full. Information from the Dutch cartel register, containing the Dutch cartel notifications, is disclosed in this thesis and forms the basis and novel major contribution of this research. 1.1 Background Economic policy is subject to the different, contradicting and often changing ideas and theories of pre-economists (or: do-it-yourself economists), economic policy makers and economic academics (Van Sinderen, 1992; Henderson, 1986: 11–12).
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