Cartel

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Headquarters of the Rhenish-Westphalian Coal Syndicate, Germany (at times the best known cartel in the world), around 1910 RWKS Syndikatsgebaude-2.jpg
Headquarters of the Rhenish-Westphalian Coal Syndicate, Germany (at times the best known cartel in the world), around 1910

A cartel is a group of independent market participants who collude with each other as well as agreeing not to compete with each other [1] in order to improve their profits and dominate the market. A cartel is an organization formed by producers to limit competition and increase prices by creating artificial shortages through low production quotas, stockpiling, and marketing quotas. Cartels can be vertical or horizontal but are inherently unstable due to the temptation to defect and falling prices for all members. Additionally, advancements in technology or the emergence of substitutes may undermine cartel pricing power, leading to the breakdown of the cooperation needed to sustain the cartel. Cartels are usually associations in the same sphere of business, and thus an alliance of rivals. Most jurisdictions consider it anti-competitive behavior and have outlawed such practices. Cartel behavior includes price fixing, bid rigging, and reductions in output. The doctrine in economics that analyzes cartels is cartel theory. Cartels are distinguished from other forms of collusion or anti-competitive organization such as corporate mergers. [2]

Contents

Etymology

The word cartel comes from the Italian word cartello , which means a "leaf of paper" or "placard", and is itself derived from the Latin charta meaning "card". [3] The Italian word became cartel in Middle French, which was borrowed into English. In English, the word was originally used for a written agreement between warring nations to regulate the treatment and exchange of prisoners [4] from the 1690s onward. [3] From 1899 onwards, the usage of the word became generalized as to mean any intergovernmental agreement between rival nations. [3]

The use of the English word cartel to describe an economic group rather than international agreements was derived much later in the 1800s from the German Kartell, which also has its origins in the French cartel. [3] It was first used between German railway companies in 1846 to describe tariff- and technical standardization efforts. The first time the word was referred to describe a kind of restriction of competition was by the Austro-Hungarian political scientist Lorenz von Stein, [5] who wrote on tariff cartels:

There's no more one-sided perspective than the one saying that such rate-cartels are "monopoly cartels" or cartels for the "exploitation of carriers".

—  Lorenz von Stein, 1874 [5]

History

Cartels have existed since ancient times. [6] Guilds in the European Middle Ages, associations of craftsmen or merchants of the same trade, have been regarded as cartel-like. [7] Tightly organized sales cartels existed in the mining industry of the late Middle Ages, like the 1301 salt syndicate in France and Naples, or the Alaun cartel of 1470 between the Papal State and Naples. [8] Both unions had common sales organizations for overall production called the Societas Communis Vendicionis ('Common Sales Society').

Laissez-faire (liberal) economic conditions dominated Europe and North America in the 18th and 19th centuries. Around 1870, cartels first appeared in industries formerly under free-market conditions. [9] Although cartels existed in all economically developed countries, the core area of cartel activities was in central Europe. The German Empire and Austria-Hungary were nicknamed the "lands of the cartels". [10] Cartels were also widespread in the United States during the period of robber barons and industrial trusts. [11]

The creation of cartels increased globally after World War I. They became the leading form of market organization, particularly in Europe and Japan. In the 1930s, authoritarian regimes such as Nazi Germany, Italy under Mussolini, and Spain under Franco used cartels to organize their corporatist economies. Between the late 19th century and around 1945, the United States was ambivalent about cartels and trusts. There were periods of both opposition to market concentration and relative tolerance of cartels. During World War II, the United States strictly turned away from cartels. [12] After 1945, American-promoted market liberalism led to a worldwide cartel ban, where cartels continue to be obstructed in an increasing number of countries and circumstances.

Types

Cartels have many structures and functions that ideally enable corporations to navigate and control market uncertainties and gain collusive profits within their industry. A typical cartel often requires what competition authorities refer to as a CAU (Contact, Agreement or Understanding). [13] Typologies have emerged to distinguish distinct forms of cartels:

Effects

A survey of hundreds of published economic studies and legal decisions of antitrust authorities found that the median price increase achieved by cartels in the last 200 years is about 23 percent. [17] Private international cartels (those with participants from two or more nations) had an average price increase of 28 percent, whereas domestic cartels averaged 18 percent. Less than 10 percent of all cartels in the sample failed to raise market prices. [18]

In general, cartel agreements are economically unstable in that there is an incentive for members to cheat by selling at below the cartel's agreed price or selling more than the cartel's production quotas. Many cartels that attempt to set product prices are unsuccessful in the long term because of cheating punishment mechanisms such as price wars or financial punishment. [19] An empirical study of 20th-century cartels determined that the mean duration of discovered cartels is from 5 to 8 years and overcharged by approximately 32%. This distribution was found to be bimodal, with many cartels breaking up quickly (less than a year), many others lasting between five and ten years, and still some that lasted decades. [20] Within the industries that have operating cartels, the median number of cartel members is 8. Once a cartel is broken, the incentives to form a new cartel return, and the cartel may be re-formed. Publicly known cartels that do not follow this business cycle include, by some accounts, OPEC.

Cartels often practice price fixing internationally. When the agreement to control prices is sanctioned by a multilateral treaty or protected by national sovereignty, no antitrust actions may be initiated. [21] OPEC countries partially control the price of oil. [22] [23]

Organization

Drawing upon research on organizational misconduct, scholars in economics, sociology and management have studied the organization of cartels. [24] [25] They have paid attention to the way cartel participants work together to conceal their activities from antitrust authorities. Even more than reaching efficiency, participating firms need to ensure that their collective secret is maintained. [26]

Cartel theory versus antitrust concept

The scientific analysis of cartels is based on cartel theory. It was pioneered in 1883 by the Austrian economist Friedrich Kleinwächter and in its early stages was developed mainly by German-speaking scholars. [27] These scholars tended to regard cartels as an acceptable part of the economy. At the same time, American lawyers increasingly turned against trade restrictions, including all cartels. The Sherman act, which impeded the formation and activities of cartels, was passed in the United States in 1890. The American viewpoint, supported by activists like Thurman Arnold and Harley M. Kilgore, eventually prevailed when governmental policy in Washington could have a larger impact in World War II.

Legislation and penalties

Because cartels are likely to have an impact on market positions, they are subjected to competition law, which is executed by governmental competition regulators. Very similar regulations apply to corporate mergers. A single entity that holds a monopoly is not considered a cartel but can be sanctioned through other abuses of its monopoly.

Prior to World War II, members of cartels could sign contracts that were enforceable in courts of law except in the United States. Before 1945, cartels were tolerated in Europe and specifically promoted as a business practice in German-speaking countries. [28] In U.S. v. National Lead Co. et al., the Supreme Court of the United States noted the testimony of individuals who cited that a cartel, in its versatile form, is

a combination of producers for the purpose of regulating production and, frequently, prices, and an association by agreement of companies or sections of companies having common interests so as to prevent extreme or unfair competition. [29]

The first legislation against cartels to be enforced was the Sherman Act 1890, which also prohibits price fixing, market-sharing, output restrictions and other anti-competitive conduct. [30] Section 1 and 2 of the Act outlines the law in regards to cartels,

Section 1:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. [31]

Section 2:

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100 million if a corporation, or, if any other person, $1 million, or by imprisonment not exceeding ten years, or by both said punishments, in the discretion of the court. [32]

In practice, detecting and desisting cartels is undertaken through the use of economic analysis and leniency programmes. Economic analysis is implemented to identify any discrepancies in market behaviour between both suspected and unsuspected cartel engaged firms. A structural approach is done in the form of screening already suspicious firms for industry traits of a typical cartel price path. A typical path often includes a formation phase in which prices decline, followed by a transition phase in which prices tend to rise, and end with a stationary phase in which price variance remains low. [33] Indicators such as price changes alongside import rates, market concentration, time period of permanent price changes and stability of companies' market shares are used as economic markers to help supplement the search for cartel behaviour. [34] On the contrary, when aiming to create suspicion around potential cartels, a behavioural approach is often used to identify behavioural collusive patterns, to initiate further economic analysis into identifying and prosecuting those involved in the operations. For example, studies have shown that industries are more likely to experience collusion where there are fewer firms, products are homogeneous and there is a stable demand. [35]

Leniency programmes

Leniency programmes were first introduced in 1978 in the US, before being successfully reformed in 1993. [36] The underlying principle of a leniency program is to offer discretionary penalty reductions for corporations or individuals who are affiliated with cartel operations, in exchange for their cooperation with enforcement authorities in helping to identify and penalise other participating members. According to the Australian Department of Justice, the following 6 conditions must be met for admission into a leniency program:

  1. The corporation is the first one to come forward and qualify for leniency with respect to the illegal activity being reported;
  2. The Division, at the time the corporation comes in, does not yet have evidence against the company that is likely to result in a sustainable conviction;
  3. The corporation, upon its discovery of the illegal activity being reported, took prompt and effective action to terminate its part in the activity;
  4. The corporation reports the wrongdoing with candor and completeness and provides full, continuing and complete cooperation that advances the Division in its investigation;
  5. The confession of wrongdoing is truly a corporate act, as opposed to isolated confessions of individual executives or officials;
  6. Where possible, the corporation makes restitution to injured parties; and
  7. The Division determines that granting leniency would not be unfair to others, considering the nature of the illegal activity, the confessing corporation's role in it, and when the corporation comes forward. [37]

The application of leniency programme penalties varies according to individual countries policies and are proportional to cartel profits and years of infringement. However, typically the first corporation or individual to cooperate will receive the most reduced penalty in comparison to those who come forward later. [38] The effectiveness of leniency programmes in destabilising and deterring cartels is evidenced by the decreased formation and discovery of cartels in the US since the introduction of the programmes in 1993. [39] Some prosecuted examples include:

Price fixing

Today, price fixing by private entities is illegal under the antitrust laws of more than 140 countries. The commodities of prosecuted international cartels include lysine, citric acid, graphite electrodes, and bulk vitamins. [43] In many countries, the predominant belief is that cartels are contrary to free and fair competition, considered the backbone of political democracy. [44] Maintaining cartels continues to become harder for cartels. Even if international cartels cannot be regulated as a whole by individual nations, their individual activities in domestic markets are affected. [45]

Unlike other cartels, export cartels are legal in virtually all jurisdictions, despite their harmful effects on affected markets. [46]

Examples

The printing equipment company American Type Founders (ATF) explicitly states in its 1923 manual that its goal is to "discourage unhealthy competition" in the printing industry. ATF policy.jpg
The printing equipment company American Type Founders (ATF) explicitly states in its 1923 manual that its goal is to "discourage unhealthy competition" in the printing industry.

See also

Related Research Articles

An oligopoly is a market in which control over an industry lies in the hands of a few large sellers who own a dominant share of the market. Oligopolistic markets have homogenous products, few market participants, and inelastic demand for the products in those industries. As a result of their significant market power, firms in oligopolistic markets can influence prices through manipulating the supply function. Firms in an oligopoly are also mutually interdependent, as any action by one firm is expected to affect other firms in the market and evoke a reaction or consequential action. As a result, firms in oligopolistic markets often resort to collusion as means of maximising profits.

<span class="mw-page-title-main">United States antitrust law</span> American legal system intended to promote competition among businesses

In the United States, antitrust law is a collection of mostly federal laws that regulate the conduct and organization of businesses in order to promote competition and prevent unjustified monopolies. The three main U.S. antitrust statutes are the Sherman Act of 1890, the Clayton Act of 1914, and the Federal Trade Commission Act of 1914. These acts serve three major functions. First, Section 1 of the Sherman Act prohibits price fixing and the operation of cartels, and prohibits other collusive practices that unreasonably restrain trade. Second, Section 7 of the Clayton Act restricts the mergers and acquisitions of organizations that may substantially lessen competition or tend to create a monopoly. Third, Section 2 of the Sherman Act prohibits monopolization.

<span class="mw-page-title-main">Price fixing</span> Agreement over prices between participants on the same side in a market

Price fixing is an anticompetitive agreement between participants on the same side in a market to buy or sell a product, service, or commodity only at a fixed price, or maintain the market conditions such that the price is maintained at a given level by controlling supply and demand.

Collusion is a deceitful agreement or secret cooperation between two or more parties to limit open competition by deceiving, misleading or defrauding others of their legal right. Collusion is not always considered illegal. It can be used to attain objectives forbidden by law; for example, by defrauding or gaining an unfair market advantage. It is an agreement among firms or individuals to divide a market, set prices, limit production or limit opportunities. It can involve "unions, wage fixing, kickbacks, or misrepresenting the independence of the relationship between the colluding parties". In legal terms, all acts effected by collusion are considered void.

Anti-competitive practices are business or government practices that prevent or reduce competition in a market. Antitrust laws ensure businesses do not engage in competitive practices that harm other, usually smaller, businesses or consumers. These laws are formed to promote healthy competition within a free market by limiting the abuse of monopoly power. Competition allows companies to compete in order for products and services to improve; promote innovation; and provide more choices for consumers. In order to obtain greater profits, some large enterprises take advantage of market power to hinder survival of new entrants. Anti-competitive behavior can undermine the efficiency and fairness of the market, leaving consumers with little choice to obtain a reasonable quality of service.

Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust law, anti-monopoly law, and trade practices law; the act of pushing for antitrust measures or attacking monopolistic companies is commonly known as trust busting.

Decartelization is the transition of a national economy from monopoly control by groups of large businesses, known as cartels, to a free market economy. This change rarely arises naturally, and is generally the result of regulation by a governing body with monopoly of power to decide what structures it likes.

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The lysine price-fixing conspiracy was an organized effort during the mid-1990s to raise the price of the animal feed additive lysine. It involved five companies that had commercialized high-tech fermentation technologies, including American company Archer Daniels Midland (ADM), Japanese companies Ajinomoto and Kyowa Hakko Kogyo, and Korean companies Sewon America Inc. and Cheil Jedang Ltd. A criminal investigation resulted in fines and three-year prison sentences for three executives of ADM who colluded with the other companies to fix prices. The foreign companies settled with the United States Department of Justice Antitrust Division in September through December 1996. Each firm and four executives from the Asian firms pleaded guilty as part of a plea bargain to aid in further investigation against ADM. The cartel had been able to raise lysine prices 70% within their first nine months of cooperation.

Economic law is a set of legal rules for regulating economic activity. Economics can be defined as "a social science concerned with the production, distribution, and consumption of goods and services." The regulation of such phenomena, law, can be defined as "customs, practices, and rules of conduct of a community that are recognized as binding by the community", where "enforcement of the body of rules is through a controlling authority." Accordingly, different states have their own legal infrastructure and produce different provisions of goods and services.

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<span class="mw-page-title-main">No Oil Producing and Exporting Cartels Act</span> Former congressional bill

The No Oil Producing and Exporting Cartels Act (NOPEC) was a U.S. Congressional bill, never enacted, known as H.R. 2264 (in 2007) and then as part of H.R. 6074 (in 2008). NOPEC was designed to remove the state immunity shield and to allow the international oil cartel, OPEC, and its national oil companies to be sued under U.S. antitrust law for anti-competitive attempts to limit the world's supply of petroleum and the consequent impact on oil prices. Despite popular sentiment against OPEC, legislative proposals to limit the organization's sovereign immunity have so far been unsuccessful. "Varied forms of a NOPEC bill have been introduced some 16 times since 2000, only to be vehemently resisted by the oil industry and its allied oil interests like the American Petroleum Institute and their legion of 'K' Street Lobbyists."

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<span class="mw-page-title-main">Holm Arno Leonhardt</span>

Holm Arno Leonhardt is a German scientist in the fields of International Relations and economic history, especially in the realm of cartel history and theory. He was born in Manila (Philippines) the son of Brigitte and Arno Leonhardt. Arno became a German expatriate since 1930, moving up the career ladder from accountant to vice director in the branch office of an American paper machine company in Manila. Brigitte came from a liberal merchant family in Saxony (Germany) holding critical distance to the Nazi regime.

Cartel theory is usually understood as the doctrine of economic cartels. However, since the concept of 'cartel' does not have to be limited to the field of the economy, doctrines on non-economic cartels are conceivable in principle. Such exist already in the form of the state cartel theory and the cartel party theory. For the pre-modern cartels, which existed as rules for tournaments, duels and court games or in the form of inter-state fairness agreements, there was no scientific theory. Such has developed since the 1880s for the scope of the economy, driven by the need to understand and classify the mass emergence of entrepreneurial cartels. Within the economic cartel theory, one can distinguish a classical and a modern phase. The break between the two was set through the enforcement of a general cartel ban after Second World War by the US government.

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Margaret C. Levenstein is an American economist who is Director of the Inter-university Consortium for Political and Social Research (ICPSR) and Research Professor at the Institute for Social Research and the School of Information at the University of Michigan. She is a past president of the Business History Conference. Her research focuses on historical firm organization and competition and the evolution of information systems within firms.

References

  1. ↑ api_import (2024-02-22). "What is a cartel?". comcom.govt.nz. Retrieved 2024-04-12.
  2. ↑ Margaret C. Levenstein and Valerie Y. Suslow, "What determines cartel success?." Journal of economic literature 44.1 (2006): 43-95 online.
  3. 1 2 3 4 "cartel | Search Online Etymology Dictionary". www.etymonline.com. Retrieved 2021-08-16.
  4. ↑ "Definition of CARTEL". www.merriam-webster.com. Retrieved 2019-11-29.
  5. 1 2 Leonhardt, Holm A. (2013). Kartelltheorie und Internationale Beziehungen theoriegeschichtliche Studien. Michael Gehler. Hildesheim. p. 14. ISBN   978-3-487-14840-3. OCLC   826595283.{{cite book}}: CS1 maint: location missing publisher (link)
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  7. ↑ Holm A. Leonhardt: Kartelltheorie und Internationale Beziehungen. Theoriegeschichtliche Studien, Hildesheim 2013, p. 79.
  8. ↑ Nino Herlitzka: Bemerkungen zur historischen Entwicklung von Kartellen. In: Ludwig Kastl (Ed.): Kartelle in der Wirklichkeit. Köln 1963, p. 124–127.
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  10. ↑ Holm A. Leonhardt: Kartelltheorie und Internationale Beziehungen. Theoriegeschichtliche Studien, Hildesheim 2013, S. 83–84.
  11. ↑ Holm Arno Leonhardt: The development of cartel theory between 1883 and the 1930s. Hildesheim 2018. p. 18.
  12. ↑ Holm A. Leonhardt: Kartelltheorie und Internationale Beziehungen. Theoriegeschichtliche Studien. Hildesheim 2013, p. 251–292.
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  15. ↑ Han, Seungjin (2014-03-01). "Implicit collusion in non-exclusive contracting under adverse selection". Journal of Economic Behavior & Organization. 99: 85–95. doi:10.1016/j.jebo.2013.12.013. ISSN   0167-2681.
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  19. ↑ Levenstein, Margaret C.; Suslow, Valerie Y. (2006). "What determined cartel success?". Journal of Economic Literature. 44: 43–95. doi:10.1257/002205106776162681. hdl: 2027.42/35837 – via American Economic Association.
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  21. ↑ Connor, John M. Private International Cartels: A Concise Introduction: SSRN Working Paper. (November 12, 2014). Abstract.
  22. ↑ Burclaff, Natalie. "Research Guides: Oil and Gas Industry: A Research Guide: Organizations and Cartels". guides.loc.gov. Retrieved 2023-03-17.
  23. ↑ Huppmann, Daniel; Holz, Franziska (2015). "What about the OPEC Cartel?". EconStor.
  24. ↑ Faulkner, Robert R.; Cheney, Eric R.; Fisher, Gene A.; Baker, Wayne E. (2003). "Crime by Committee: Conspirators and Company Men in the Illegal Electrical Industry Cartel, 1954–1959". Criminology. 41 (2): 511–554. doi:10.1111/j.1745-9125.2003.tb00996.x. ISSN   1745-9125.
  25. ↑ Genesove, David; Mullin, Wallace P (2001). "Rules, Communication, and Collusion: Narrative Evidence from the Sugar Institute Case" (PDF). American Economic Review. 91 (3): 379–398. doi:10.1257/aer.91.3.379. ISSN   0002-8282. S2CID   153786791. Archived (PDF) from the original on 2022-10-09.
  26. ↑ Baker, Wayne E.; Faulkner, Robert R. (1993). "The Social Organization of Conspiracy: Illegal Networks in the Heavy Electrical Equipment Industry". American Sociological Review. 58 (6): 837. doi:10.2307/2095954. JSTOR   2095954.
  27. ↑ Holm Arno Leonhardt: The development of cartel theory between 1883 and the 1930s. Hildesheim 2018.
  28. ↑ Cini, Michelle; McGowan, Lee (2009). Competition Policy in the European Union. New York: Palgrave Macmillan. p. 63. ISBN   978-0-230-00675-1.
  29. ↑ Lee, John (2016). Strategies to Achieve a Binding International Agreement on Regulating Cartels: Overcoming Doha Standstill. Berlin: Springer. p. 13. ISBN   978-981-10-2755-0.
  30. ↑ Sullivan, E. Thomas (1991). The political economy of the Sherman Act: The first one hundred years. Oxford University Press. ISBN   9780195066425.
  31. ↑ "15 U.S. Code § 1 - Trusts, etc., in restraint of trade illegal; penalty". LII / Legal Information Institute. Retrieved 2021-04-26.
  32. ↑ "15 U.S. Code § 2 - Monopolizing trade a felony; penalty". LII / Legal Information Institute. Retrieved 2021-04-26.
  33. ↑ Harrington, Joseph E. Jr.; Chen, Joe (2002). "Cartel Pricing Dynamics with Cost Variability and Endogenous Buyer Detection". The Johns Hopkins University,Department of Economics– via Economics Working Paper Archive.
  34. ↑ IVALDI, Marc. "Cartel Damages to the Economy: An Assessment for Developing Countries" (PDF). Toulouse School of Economics and CEPR. Archived (PDF) from the original on June 27, 2022 – via CEPR.
  35. ↑ Grout, Paul; Sonderegger, Silvia (2005). "Predicting Cartels" (PDF). Office of Fair Trading, Economic Discussion Paper. Archived (PDF) from the original on 2022-10-09 – via European University Institute.
  36. ↑ "Leniency Program". www.justice.gov. 2015-06-25. Retrieved 2021-04-26.
  37. ↑ Martyniszyn, Marek (2017). "Foreign State's Entanglement in Anticompetitive Conduct". Rochester, NY. SSRN   3116910.{{cite journal}}: Cite journal requires |journal= (help)
  38. ↑ Commission, Australian Competition and Consumer (2019-09-04). "ACCC immunity & cooperation policy for cartel conduct - October 2019". Australian Competition and Consumer Commission. Retrieved 2021-04-26.
  39. ↑ Miller, Nathan H. (2009). "Strategic Leniency and Cartel Enforcement". The American Economic Review. 99 (3): 750–768. doi:10.1257/aer.99.3.750. ISSN   0002-8282. JSTOR   25592481.
  40. ↑ Connor, John M. (1998). "Lysine: A Case Study in International Price-Fixing". Choices. 13 (3): 13–19. ISSN   0886-5558. JSTOR   43663287.
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  44. ↑ Sagafi-Nejad, Tagi; Moxon, Richard; Perlmutter, Howard (2017). Controlling International Technology Transfer: Issues, Perspectives, and Policy Implications. New York: Pergamon Press. p. 180. ISBN   978-0-08-027180-4.
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  46. ↑ Martyniszyn, Marek (2012). "Export Cartels: Is it Legal to Target your Neighbour? Analysis in Light of Recent Case Law". Journal of International Economic Law. 15 (1): 181. doi:10.1093/jiel/jgs003. S2CID   153887704.
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Bibliography

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