Competition law |
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Basic concepts |
Anti-competitive practices |
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Enforcement authorities and organizations |
In competition law, before deciding whether companies have significant market power which would justify government intervention, the test of small but significant and non-transitory increase in price (SSNIP) is used to define the relevant market in a consistent way. It is an alternative to ad hoc determination of the relevant market by arguments about product similarity.
The SSNIP test is crucial in competition law cases accusing abuse of dominance and in approving or blocking mergers. Competition regulating authorities and other actuators of antitrust law intend to prevent market failure caused by cartel, oligopoly, monopoly, or other forms of market dominance.
In 1982 the U.S. Department of Justice Merger Guidelines introduced the SSNIP test as a new method for defining markets and for measuring market power directly. In the EU it was used for the first time in the Nestlé/Perrier case in 1992 and has been officially recognized by the European Commission in its "Commission's Notice for the Definition of the Relevant Market" in 1997. [1]
The original concept is believed to have been proposed first in 1959 by economist David Morris Adelman of the Aston University. [2] Several other individuals formulated, apparently independently, similar conceptual approaches during the 1970s. [3] The SSNIP approach was implemented by F. M. Scherer in three antitrust cases: in a 1972 Justice Department attempt to enjoin the merger of Associated Brewing Co. and G. W. Heileman Co., in 1975 during hearings on the U.S. government's monopolization case against IBM, and in a 1981 proceeding precipitated by Marathon Oil Company's effort to avert takeover by Mobil Oil Corporation. [4] Scherer also proposed the basic concept underlying SSNIP along with limitations posed by what has come to be known as "the cellophane fallacy" in the second (1980) edition of his industrial organization textbook. [5] Historical retrospectives suggest that early proponents were unaware of other individuals' conceptual proposals.
The SSNIP test seeks to identify the smallest relevant market within which a hypothetical monopolist or cartel could impose a profitable significant increase in price. The relevant market consists of a "catalogue" of goods and/or services which are considered substitutes by the customer. Such a catalogue is considered "worth monopolizing" if, should only one single supplier provide it, that supplier could profitably increase its price without its customers turning away and choosing other goods and services from other suppliers.
The application of the SSNIP test involves interviewing consumers regarding buying decisions and determining whether a hypothetical monopolist or cartel could profit from a price increase of 5% for at least one year (assuming that "the terms of sale of all other products are held constant"). If sufficient numbers of buyers are likely to switch to alternative products and the lost sales would make such price increase unprofitable, then the hypothetical market should not be considered a relevant market for the basis of litigation or regulation. Therefore, another, larger, basket of products is proposed for a hypothetical monopolist to control and the SSNIP test is performed on that relevant market.
The SSNIP test can be applied by estimating empirically the critical elasticity of demand. In the case of linear demand, information on firms' price-cost margins is sufficient for the calculation. If the pre-merger elasticity of demand exceeds the critical elasticity, then the decline in sales arising from the price increase will be sufficiently large to render the price increase unprofitable and the products concerned do not constitute the relevant market.
An alternative method for applying the SSNIP test where demand elasticities cannot be estimated, involves estimating the "critical loss." The critical loss is defined as the maximum sales loss that could be sustained as a result of the price increase without making the price increase unprofitable. Where the likely loss of sales to the hypothetical monopolist (cartel) is less than the Critical Loss, then a 5% price increase would be profitable and the market is defined. [6]
The test consists of observing whether a small increase in price (in the range of 5 to 10 percent) would provoke a significant number of consumers to switch to another product (in fact, substitute product). In other words, it is designed to analyse whether that increase in price would be profitable or if, instead, it would just induce substitution, making it unprofitable.
In general, one uses databases from the firms which may include data on variables such as costs, prices, revenue or sales and over a sufficiently long period (generally over at least two years).
In economic terms, what the SSNIP test does is to calculate the residual elasticity of demand of the firm. That is, how a change in prices by the firm affects its own demand.
As an example, let's suppose the following situation for a firm:
In this case, the firm would make profits equal to 5000: .
Now suppose the firm decides to increase its price by a 10 percent, which would imply that the new price would be 11 (10 percent increase). Suppose that the new situation facing the firm is therefore:
In this case, the firm would make profits equal to 4800: .
As can be seen, such an increase in prices would induce a certain substitution for our hypothetical firm, in fact, 200 units less will be sold. This may be so because some consumers have started to buy a substitute product, the same consumers have bought a smaller quantity of the product given its price increase or maybe because they have stopped buying that type of product.
If we want to know whether such price increase has been profitable, we should solve the following equation:
In our example, the increase in price produces too much consumer substitution which is not compensated by the increase in price nor the reduction in costs. Overall, the firm would make less profits (4800 compared to 5000). In other words, there are other substitute products that should be included in the relevant market and the product of the firm does not constitute by itself a separate relevant market. The "market" formed by this only product is not "worth monopolising" as an increase in prices would not be profitable. The investigation should continue by including new products which we may guess are substitutes of the one under investigation.
We already know that the previous product is not by itself a relevant market because there do exist other substitute products. Let’s suppose that the previous firm (A) tells us that it considers as competitors the products of B and C. In this case, in the second phase we should include these products to our analysis and repeat the exercise.
The situation can be described as follows:
Price A = 10; | Sales A = 1000; | Variable cost per unit A = 5 |
Price B = 13; | Sales B = 800; | Variable cost per unit B = 4 |
Price C = 9; | Sales C = 1100; | Variable cost per unit C = 4 |
Given that we want to know if products A, B and C constitute a relevant market, the exercise would consist in supposing that an hypothetical monopolist X would control all three products. In that case, the monopolist would make profits of:
Now suppose that monopolist X decides to increase the price of product A, maintaining the price of B and C constant. Suppose that a 10 percent increase in the price of A provokes the following situation:
Price A = 11; | Sales A = 800; | Variable cost per unit A = 5 |
Price B = 13; | Sales B = 900; | Variable cost per unit B = 4 |
Price C = 9; | Sales C = 1200; | Variable cost per unit C = 4 |
This means that the price increase of A would provoke that 200 units less of A be sold and instead, 100 more units of B and C will be sold respectively. Given that our hypothetical monopolist controls all three products, its profits will be:
As can be seen, the monopolist controlling A, B and C would profitably increase the price of A by 10 percent, in other words, these three products do constitute a market "worth monopolising" and therefore constitutes a relevant market. This result is because X controls all three products which are the only substitutes of A. Thus, X knows that even if its increase in price of A will generate some substitution, a significant share of these consumers will end up buying other products which he controls, therefore overall, his profits will not be reduced but rather increased.
If we had found that such an increase would not have been profitable, we should further include new products which we may imagine are substitutes in a third phase until we arrive at a situation in which such an increase in price would have been profitable, indicating that those products do constitute a relevant market.
Despite its widespread usage, the SSNIP test is not without problems. Specifically:
Furthermore, many economists have noted an important pitfall in the use of demand elasticities when inferring both the market power and the relevant market. The problem arises from the fact that economic theory predicts that any profit-maximizing firm will set its prices at a level where demand for its product is elastic. Therefore, when a monopolist sets its prices at a monopoly level it may happen that two products appear to be close substitutes whereas at competitive prices they are not. In other words, it may happen that using the SSNIP test one defines the relevant market too broadly, including products which are not substitutes.
This problem is known in the literature as the cellophane paradox after the celebrated DuPont case (U.S. v. E. I. du Pont [8] ). In this case, DuPont (a cellophane producer) argued that cellophane was not a separate relevant market since it competed with flexible packaging materials such as aluminum foil, wax paper and polyethylene. The problem was that DuPont, being the sole producer of cellophane, had set prices at the monopoly level, and it was at this level that consumers viewed those other products as substitutes. Instead, at the competitive level, consumers viewed cellophane as a unique relevant market (a small but significant increase in prices would not have them switching to goods like wax or the others). In the case, the Supreme Court of the United States failed to recognise that a high own-price elasticity may mean that a firm is already exercising monopoly power. [9]
A monopoly, as described by Irving Fisher, is a market with the "absence of competition", creating a situation where a specific person or enterprise is the only supplier of a particular thing. This contrasts with a monopsony which relates to a single entity's control of a market to purchase a good or service, and with oligopoly and duopoly which consists of a few sellers dominating a market. Monopolies are thus characterised by a lack of economic competition to produce the good or service, a lack of viable substitute goods, and the possibility of a high monopoly price well above the seller's marginal cost that leads to a high monopoly profit. The verb monopolise or monopolize refers to the process by which a company gains the ability to raise prices or exclude competitors. In economics, a monopoly is a single seller. In law, a monopoly is a business entity that has significant market power, that is, the power to charge overly high prices, which is associated with unfair price raises. Although monopolies may be big businesses, size is not a characteristic of a monopoly. A small business may still have the power to raise prices in a small industry.
Monopolistic competition is a type of imperfect competition such that there are many producers competing against each other but selling products that are differentiated from one another and hence not perfect substitutes. In monopolistic competition, a company takes the prices charged by its rivals as given and ignores the impact of its own prices on the prices of other companies. If this happens in the presence of a coercive government, monopolistic competition will fall into government-granted monopoly. Unlike perfect competition, the company maintains spare capacity. Models of monopolistic competition are often used to model industries. Textbook examples of industries with market structures similar to monopolistic competition include restaurants, cereals, clothing, shoes, and service industries in large cities. The "founding father" of the theory of monopolistic competition is Edward Hastings Chamberlin, who wrote a pioneering book on the subject, Theory of Monopolistic Competition (1933). Joan Robinson's book The Economics of Imperfect Competition presents a comparable theme of distinguishing perfect from imperfect competition. Further work on monopolistic competition was undertaken by Dixit and Stiglitz who created the Dixit-Stiglitz model which has proved applicable used in the sub fields of international trade theory, macroeconomics and economic geography.
In economics, the crosselasticity of demand measures the effect of changes in the price of one good on the quantity demanded of another good. This reflects the fact that the quantity demanded of good is dependent on not only its own price but also the price of other "related" good.
In economics and business ethics, a coercive monopoly is a firm that is able to raise prices and make production decisions without the risk that competition will arise to draw away their customers. A coercive monopoly is not merely a sole supplier of a particular kind of good or service, but it is a monopoly where there is no opportunity to compete with it through means such as price competition, technological or product innovation, or marketing; entry into the field is closed. As a coercive monopoly is securely shielded from the possibility of competition, it is able to make pricing and production decisions with the assurance that no competition will arise. It is a case of a non-contestable market. A coercive monopoly has very few incentives to keep prices low and may deliberately price gouge consumers by curtailing production.
Monopoly profit is an inflated level of profit due to the monopolistic practices of an enterprise.
In microeconomics, substitute goods are two goods that can be used for the same purpose by consumers. That is, a consumer perceives both goods as similar or comparable, so that having more of one good causes the consumer to desire less of the other good. Contrary to complementary goods and independent goods, substitute goods may replace each other in use due to changing economic conditions. An example of substitute goods is Coca-Cola and Pepsi; the interchangeable aspect of these goods is due to the similarity of the purpose they serve, i.e. fulfilling customers' desire for a soft drink. These types of substitutes can be referred to as close substitutes.
Predatory pricing is a commercial pricing strategy which involves the use of large scale undercutting to eliminate competition. This is where an industry dominant firm with sizable market power will deliberately reduce the prices of a product or service to loss-making levels to attract all consumers and create a monopoly. For a period of time, the prices are set unrealistically low to ensure competitors are unable to effectively compete with the dominant firm without making substantial loss. The aim is to force existing or potential competitors within the industry to abandon the market so that the dominant firm may establish a stronger market position and create further barriers to entry. Once competition has been driven from the market, consumers are forced into a monopolistic market where the dominant firm can safely increase prices to recoup its losses.
In economics, market power refers to the ability of a firm to influence the price at which it sells a product or service by manipulating either the supply or demand of the product or service to increase economic profit. In other words, market power occurs if a firm does not face a perfectly elastic demand curve and can set its price (P) above marginal cost (MC) without losing revenue. This indicates that the magnitude of market power is associated with the gap between P and MC at a firm's profit maximising level of output. The size of the gap, which encapsulates the firm's level of market dominance, is determined by the residual demand curve's form. A steeper reverse demand indicates higher earnings and more dominance in the market. Such propensities contradict perfectly competitive markets, where market participants have no market power, P = MC and firms earn zero economic profit. Market participants in perfectly competitive markets are consequently referred to as 'price takers', whereas market participants that exhibit market power are referred to as 'price makers' or 'price setters'.
Marginal revenue is a central concept in microeconomics that describes the additional total revenue generated by increasing product sales by 1 unit. Marginal revenue is the increase in revenue from the sale of one additional unit of product, i.e., the revenue from the sale of the last unit of product. It can be positive or negative. Marginal revenue is an important concept in vendor analysis. To derive the value of marginal revenue, it is required to examine the difference between the aggregate benefits a firm received from the quantity of a good and service produced last period and the current period with one extra unit increase in the rate of production. Marginal revenue is a fundamental tool for economic decision making within a firm's setting, together with marginal cost to be considered.
Non-price competition is a marketing strategy "in which one firm tries to distinguish its product or service from competing products on the basis of attributes like design and workmanship". It often occurs in imperfectly competitive markets because it exists between two or more producers that sell goods and services at the same prices but compete to increase their respective market shares through non-price measures such as marketing schemes and greater quality. It is a form of competition that requires firms to focus on product differentiation instead of pricing strategies among competitors. Such differentiation measures allowing for firms to distinguish themselves, and their products from competitors, may include, offering superb quality of service, extensive distribution, customer focus, or any sustainable competitive advantage other than price. When price controls are not present, the set of competitive equilibria naturally correspond to the state of natural outcomes in Hatfield and Milgrom's two-sided matching with contracts model.
A business can use a variety of pricing strategies when selling a product or service. To determine the most effective pricing strategy for a company, senior executives need to first identify the company's pricing position, pricing segment, pricing capability and their competitive pricing reaction strategy. Pricing strategies and tactics vary from company to company, and also differ across countries, cultures, industries and over time, with the maturing of industries and markets and changes in wider economic conditions.
In economics, market concentration is a function of the number of firms and their respective shares of the total production in a market. Market concentration is the portion of a given market's market share that is held by a small number of businesses. To ascertain whether an industry is competitive or not, it is employed in antitrust law and economic regulation. When market concentration is high, it indicates that a few firms dominate the market and oligopoly or monopolistic competition is likely to exist. In most cases, high market concentration produces undesirable consequences such as reduced competition and higher prices.
Market dominance is the control of a economic market by a firm. A dominant firm possesses the power to affect competition and influence market price. A firms' dominance is a measure of the power of a brand, product, service, or firm, relative to competitive offerings, whereby a dominant firm can behave independent of their competitors or consumers, and without concern for resource allocation. Dominant positioning is both a legal concept and an economic concept and the distinction between the two is important when determining whether a firm's market position is dominant.
In competition law, a relevant market is a market in which a particular product or service is sold. It is the intersection of a relevant product market and a relevant geographic market. The European Commission defines a relevant market and its product and geographic components as follows:
In economics, profit is the difference between revenue that an economic entity has received from its outputs and total costs of its inputs, also known as surplus value. It is equal to total revenue minus total cost, including both explicit and implicit costs.
Total revenue is the total receipts a seller can obtain from selling goods or services to buyers. It can be written as P × Q, which is the price of the goods multiplied by the quantity of the sold goods.
The Cellophane paradox describes a type of incorrect reasoning used in market regulation methods.
Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), was a United States Supreme Court case that decided whether a dominant firm's unilateral refusal to deal with a competitor could establish a monopolization claim under Section 2 of the Sherman Act. The unanimous Supreme Court agreed with the 10th Circuit that terminating a pro-consumer joint venture without a legitimate business justification could constitute illegal monopolization. However, its decision created an exception to the general rule that firms can decide with whom to do business absent collusion, sparking significant controversy about the appropriate scope of this exception. In a subsequent case, Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, Justice Scalia, writing for the majority, stated that Aspen Skiing is "at or near the outer boundary of § 2 liability." Although its holding has been narrowed, this case's relevance remains contested, especially in the context of refusals to license intellectual property.
Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992), is a 1992 Supreme Court decision in which the Court held that even though an equipment manufacturer lacked significant market power in the primary market for its equipment—copier-duplicators and other imaging equipment—nonetheless, it could have sufficient market power in the secondary aftermarket for repair parts to be liable under the antitrust laws for its exclusionary conduct in the aftermarket. The reason was that it was possible that, once customers were committed to the particular brand by having purchased a unit, they were "locked in" and no longer had any realistic alternative to turn to for repair parts.
In microeconomics, a monopoly price is set by a monopoly. A monopoly occurs when a firm lacks any viable competition and is the sole producer of the industry's product. Because a monopoly faces no competition, it has absolute market power and can set a price above the firm's marginal cost.