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Government and The Markets PDF
Government and The Markets PDF
in markets
Why competition matters –
a guide for policy makers
© Crown copyright 2009
This publication (excluding the OFT logo) may be reproduced free of charge
in any format or medium provided that it is reproduced accurately and not
used in a misleading context. The material must be acknowledged as
Crown copyright and the title of the publication specified.
Contents
Chapter Page
1 Executive summary 1
Part A: Principles 3
2 Introduction 4
3 The role of competition 6
4 Reasons for intervention 10
5 Types of intervention 14
6 Key points for policy makers 16
Annexe
A A brief guide to competition and consumer law 43
B References 46
One of the Office of Fair Trading’s functions, under section 7 of the Enterprise
Act 2002, is to provide information and advice to Government on competition
and consumer issues. As such, we have a dedicated Advocacy Team whose
role is to strengthen our relationships with Government departments and
other stakeholders to help preserve and promote competition in markets and
to increase awareness of consumer protection issues. This includes ensuring
that regulation does not unnecessarily or disproportionately restrict
competition, but instead achieves the best possible outcomes for consumers.
The aim of this guide is to provide a framework for analysing Government’s
interaction with markets, and for policy makers who want to understand the
different ways in which Government can affect markets. It may also help
provoke a more open debate about the long term effects of Government
intervention, both positive and negative.
1. Executive summary
At their most basic, markets are a mechanism This guide sets out the rationale for Government
for allocating resources. Well-regulated, intervention in markets and demonstrates that
competitive markets can maximise consumer for these interventions to be effective in the
welfare, and, by raising economic growth, also long term, their impact on competition needs to
increase total welfare. be a central consideration. The guide then sets
out some of the major ways that Government
When markets work well, firms thrive by
intervenes, both in setting market frameworks
providing what consumers want better and
and through its wider impact on markets. It also
more cost-effectively than their competitors.
identifies ways that policy makers can spot and
As such, effective competition provides
minimise unintended consequences that
significant benefits for consumers through
impact on effective market dynamics beyond
greater choice, lower prices, and better quality
the short term. It includes case studies of the
goods and services. Competition also provides
impacts in practice.
strong incentives for firms to be more efficient
and innovative, thereby helping raise
productivity growth across the economy. Government’s role in markets
Left to their own devices, however, markets Government can affect markets either through
will not necessarily deliver the best outcomes direct participation (as a market maker or as a
for consumers, companies or Government. In buyer or supplier of goods and services), or
order to address this, Government sets legal through indirect participation in private markets
and institutional frameworks for markets and (for example, through regulation, taxation,
companies to operate in. That is, it puts in place subsidy or other influence).
rules and regulations that determine appropriate Government frequently has a choice between
conduct of firms and individuals, and the traditional instruments and market-based
institutions necessary for enforcing them. approaches. There are pros and cons associated
Markets thus do not exist independently of with all types of Government intervention.
Government, which has a legitimate role in Many, if not most, intervention can have
intervening in and shaping them. unforeseen consequences. Failure to address
Government also intervenes more widely indirect costs and possible spillovers can result
in markets to achieve other policy goals and in a less effective policy and impose unnecessary
correct market failures. The way in which it economic costs.
chooses to do so, however, is crucial to both
the effectiveness of its interventions and
their consequences.
Government in markets 1
Government intervention can also inadvertently less transparent than other measures such as
benefit regulated industry rather than the wider setting product standards or introducing taxes
public (regulatory capture), promote inefficiency or subsidies. While these may also have effects
because of restricted competition or underplay on competition, they can typically be designed
the role of consumers by concentrating purely in a more focused and transparent way.
on the supply-side of the market.
A major challenge for policy makers is in
In general, measures that directly limit identifying the ‘hidden costs’ of competition
competition in the market will not be the restrictions. While the policy benefits of
best instruments. Regulation of, for example, particular interventions may be clear, the
price, entry and exit, or allowing anti-competitive longer-term effects on competition can be
mergers and agreements between firms, are far harder to predict.
generally rather blunt measures and can be
At a minimum, the aim for policy makers significantly raising the cost to new firms
should be to minimise the distortions to of entering the market?
markets, subject to achieving the desired
• Does it affect the nature of competition
policy objective. That is, where Government
between firms in a market, either through
has a reason for intervening in markets, it
direct restrictions (such as price or product
should try to do so in a way that avoids
regulation) or by reducing the incentive for
unintended consequences as far as possible.
firms to compete strongly?
In assessing the effectiveness of existing or
• Does it affect the ability of consumers to
proposed Government interventions in a
shop around between firms and exercise
market, policy makers should consider the
choice – for example, does it raise costs
associated costs and benefits, including the
of switching?
impact on competition within a market.
When a proposed intervention is likely
Some interventions are more likely to distort
to adversely affect competitive markets,
or restrict competitive markets, either
policy makers should consider possible
intentionally or inadvertently. To identify
alternatives which might be less restrictive
these, policy makers should consider the
of competition. Government can often play
following questions:
a beneficial role in stimulating competition in
• Does the intervention affect the possibility markets, either through setting up market
of entry and exit in a market – for example mechanisms, or, for example, through its
by granting exclusive rights to supply, wider role in procurement.
limiting the number of suppliers, or
Government in markets 3
2. Introduction
Government and markets are inextricably and broadband cables) as well as investment in
linked. Government sets the legal and innovation and education. Government has also
institutional frameworks within which markets intervened to help the economy respond to
operate. It raises taxes based on the activities longer term challenges such as energy and
of businesses and consumers in markets. It has climate change through, for example, providing
an interest in market outcomes and the way subsidies for renewable energy production.
these are distributed between different groups
Government's more active role in markets
and firms in society. Sometimes Government
coincides with a need to spend carefully. The
wants to encourage the market to deliver
2009 Budget estimated that between 2007/08
particular products and services for wider social
and 2009/10 Government expenditure will have
benefit. At other times it wants to discourage
increased by 15 per cent, while tax receipts will
market products because of their wider
have fallen by 10 per cent.1 Any intervention
negative effects. These links and tensions are
needs to be well designed and fit for purpose
an intrinsic part of a modern market economy.
to ensure that the highest value for money can
be achieved and that damaging unintended
Context consequences are avoided.
Recent developments in financial markets and This may mean a renewed focus on the
the economic downturn have cast a new light delivery of public services, such as healthcare,
on Government’s role in markets. Public trust education or benefits, which have traditionally
in the ability of markets to deliver efficiency been provided directly by the public sector
and stability has been challenged. Governments through an actual or near monopoly.
across the world have recently intervened
in markets more heavily than in many At the same time, policy makers around the
previous years. world are facing potential turning points in
how we meet the challenges of, for example,
In the UK, Government has sought to help fuel supply and alternative energy sources,
minimise the impact of the financial crisis and environmental degradation, and food supply
economic downturn on both consumers and and security. As a global community we
firms, and to help the economic recovery and are facing fundamental questions on how
secure future economic growth. Intervention we adapt existing and new markets to
has come in the form of extra spending on large changing circumstances.
capital infrastructure projects (such as Crossrail
Government in markets 5
3. The role of competition
Government in markets 7
Box 3.1: Case study of the benefits of competition: EU Aviation
Until the 1990s, the European aviation market competition has benefited consumers in
was heavily regulated and dominated by two main ways:
national flag carriers (such as British Airways
• lower prices: the lowest (nominal) non-sale
and Air France). Air travel within Europe was
fare fell 66 per cent between 1992 and 2002
governed by bilateral agreements between
Member States. • flight frequency: between 1992 and 2002
the European flight frequency increased
A series of reforms led to lessened
by 78 per cent.
state support for the incumbent airlines.
In 1993 any airline with an operating licence The increased competition has also led to
from any EU Member State was allowed to substantial regional growth, with many
operate any route within the EU, and fare low-cost airlines favouring smaller, regional
discussions were no longer bilateral. The airports as opposed to the main ones. The
deregulations led to increased competition increased frequency of flights has not led to a
and significant innovation, in particular worsening of safety: between 1992 and 2001
through the entry of low-cost airlines such the number of reportable accidents per
as Ryanair and EasyJet. The increased revenue hour fell by around 50 per cent.
6 DTI (2004).
In 1998/9 the UK domestic retail electricity sale agents using misleading information
and gas markets were fully opened to about the potential savings customers could
competition, allowing customers to switch achieve if they switched, and customers
between competing energy suppliers. being switched without their consent.
The introduction of competition provided In 2002 the energy regulator, Ofgem,
incentives for suppliers to lower prices, imposed a penalty of £2 million on London
improve their services, and increase Electricity for breaching selling regulations.
customer choice through a greater range Following this the industry introduced a
of tariffs and payment mechanisms self-regulatory code and the number of
that better suited customers’ needs. complaints about mis-selling fell sharply.
However, the experience of retail energy More recently concerns have been
liberalisation also demonstrates the need expressed about whether the proliferation of
for ongoing monitoring and enforcement choice in the market is benefiting consumers.
of consumer protection measures when Research carried out by Ofgem showed that
introducing competition into new markets, 70 per cent of consumers find the number
and highlights the risk that some customers of tariffs on offer confusing, and just over
may suffer difficulties, particularly during half find it too hard to work out whether they
the early stages of competition. would be saving anything if they switched.
Ofgem has taken a number steps to address
For example, shortly after the introduction of
this, for example through proposed license
competition, some consumers experienced
conditions requiring suppliers to provide
a number of problems as some energy
more information to customers aimed
suppliers used aggressive selling techniques
at helping them compare tariff offers.7
to attract new business. There were
complaints concerning doorstep selling,
Government in markets 9
4. Reasons for intervention
Competition by itself may not necessarily be divided into two broad types: to set the
deliver the best outcomes. framework within which markets operate,
and to influence market outcomes. This is
arkets do not always work effectively, and
M
illustrated in Figure 4.1.
as a result Government plays a crucial role.
Government interventions in markets can
Government in markets 11
Wider market interventions Interventions to address
market failure
Key points: ’Market failures’ are situations where markets
are prevented from working efficiently to
• Government frequently intervenes to provide the goods and services that are
achieve particular social objectives, such demanded by consumers and in the desired
as poverty reduction or improvement of quantities. Markets can ‘fail’ as a result of public
the health and well-being of citizens. goods, externalities, information problems and
market power.
• Government also intervenes where
markets have failed to help stabilise the Public goods
economy following an unexpected
There is a consensus that free markets would
disturbance, or to help speed up the
not provide certain public goods and services,
economic recovery following a
such as national defence. This is because once
downturn. This has recently been
the good is paid for and produced it is difficult
observed following the financial crisis
to exclude others from benefiting from it; as
and economic downturn.
a result, no individual or group is willing to
• There are costs and benefits associated pay for it.
with any Government intervention in a
Externalities
market, and it is important that policy
makers consider all of the costs and It is common for free markets to produce too
benefits of a policy intervention. much or too little of a good or service from a
Distortions to competition can often be societal point of view. This can happen when
easily overlooked by concentrating on the costs of production to an individual firm,
more direct costs. or the costs of consumption to an individual
consumer, do not include the wider costs or
• Distortions to competition are not
benefits to society.
immediately visible as it usually takes
time for the full consequences to emerge. A common example is pollution. Where firms
are not required to pay for any environmental
damage, they have little incentive to curb
Even with the existence of a basic framework to production and therefore produce too much
ensure markets function effectively, Government from a societal perspective. Conversely,
frequently intervenes in markets either: education would be underprovided if left to
private markets; whilst a well-educated
• because of market failures, or
population increases the general welfare of the
• to achieve particular social objectives, such rest of society, this would not be taken into
as reducing poverty or to improve the health account by individuals when making
and well-being of individuals. consumption decisions.
8 Akerlof (1970).
Government in markets 13
5. Types of intervention
9 OFT (2004).
Government in markets 15
6. Key points for policy makers
Japan regulates the techniques and materials Germany regulates retail trading hours
that can be used in home construction with with the aim of protecting workers and
the aim of preserving the national character making Sundays special. But this, together
of the country’s housing stock. However, with high minimum wages and zoning laws
this means that construction companies has helped keep German retail productivity
cannot increase efficiency through 15 per cent below US retailing productivity,
standardisation, which would lower the which in turn has resulted in higher prices
price of housing, and consumers cannot for consumers.
themselves decide whether they want to
pay the aesthetic premium.
For all interventions, it is important that a wide By intervening in a way that works ‘with the
range of costs and benefits are considered. grain’ of markets, Government can minimise
Failure to address indirect costs and benefits distortions to competitive markets whilst still
and possible spillovers can result in a less achieving their policy goals.
effective policy and unnecessary economic
Table 6.1 summarises some of the ways
costs across a range of markets.
Government intervenes and their potential risks
to competition. These instruments and risks are
Risks to competition from considered in more detail in Part B of this guide.
Government intervention
Importantly, distortions to competition
can be easily overlooked as policy makers
concentrate on more direct costs of an
intervention, particularly as it usually takes
some time for the consequences of
restrictions to competition to manifest.
Government in markets 17
Assessing impacts on In general, measures that directly limit
competition competition in the market will not be the most
effective instruments. Regulating price, entry or
Impacts on competition may be hard to identify exit, or allowing anti-competitive mergers and
or quantify, particularly as they tend to emerge agreements between firms, are generally rather
in the long term. Unintended distortions to blunt measures and can be less transparent
competition will be costly for consumers. than other interventions such as setting product
To identify interventions more likely to distort standards or introducing taxes or subsidies.
or restrict competitive markets, the following While these measures may also have effects
key points could be considered: on competition they can typically be designed
• Does the intervention affect the possibility of in a more focused and transparent way.
entry and exit in a market – for example, by Similarly, horizontal measures that do not
granting exclusive rights to supply, limiting discriminate by location, industry or firm type,
the number of suppliers, or significantly such as skills strategies and assistance with
raising the cost to new firms of entering access to capital, are less likely to distort
the market? competition than interventions aimed at
• Does it affect the nature of competition particular markets or firms. And where
between firms in a market, either through interventions can be more easily removed,
direct restrictions (such as price or product or are explicitly time-limited, the long-term
regulation) or by reducing the incentive on impacts on competition may be reduced.
firms to compete strongly?
Minimising impacts on
• Does it affect the ability of consumers to
shop around between firms and exercise
competition
choice – for example, does it raise costs When a proposed intervention is likely to
of switching? adversely affect competitive markets, policy
makers should consider alternative options that
Conducting competition assessments during
could achieve the same policy goal but with
the policy making process can be a useful way
fewer adverse effects.
of identifying unintended consequences. It is
important that this assessment takes place In particular, policy makers should ensure that
during the early stages of policy development. ways to influence consumer behaviour (the
This will minimise the risk of developing a demand-side) are considered alongside
policy that is ill-designed or realising late in instruments to change business behaviour (the
the process that unless changes are made, supply-side). Influencing consumer behaviour
significant adverse effects on the market will is, on the whole, far more challenging for
render the proposed policy less effective. Government than changing business behaviour:
it is more complex and takes time for the
effects to become visible. For this reason, there
can sometimes be an incentive to intervene
primarily on the supply-side, when demand-side
measures might ultimately be more effective.
Government in markets 19
Part B: Government interventions
Government in markets 21
7. Regulation13
13 More detailed guidance on competition assessment and the impacts of regulation is provided in OFT (2007a).
14 OECD (2007).
Key points for policy makers • have a clear efficiency rationale for
intervention, and
One of the biggest challenges for policy makers
is to identify unintended consequences of • where intervention is warranted, minimise
regulations. From a competition perspective, the distortion of competition subject to
the aim should be to impose the minimum achieving the goal.
regulation required to achieve any policy aim. Completing a competition assessment helps to
Regulation almost invariably creates some analyse the potential impacts of regulation on
distortion of competition which can be competition.16 The competition assessment is
detrimental to consumers. Policy makers part of a formal regulatory Impact Assessment,
should: and identifies four ways in which regulations
can affect competition, as set out in Box 7.2 .
15 OFT (2003).
16 OFT (2007a).
Government in markets 23
Government uses a wide range of instruments Firms in most markets also compete on product
to regulate markets, including permits, quotas, quality and other characteristics, not just on
quality standards and price controls. As a broad price, and regulation of standards will affect
guide, it is useful to distinguish between: this wider process of quality competition and
innovation. In some situations in which
• regulations on parameters of price and
consumers find it hard to gauge quality in a
quantity (including direct constraints on
market, product standards can actually enhance
entry into a market), and
competition by focussing it in areas that
• regulations on product characteristics, consumers can compare and act upon.
standards or quality.
Rather than regulating to influence outcomes
Regulations on price, quantity and entry will directly, Government can sometimes use
typically place a direct restriction on competition market-based mechanisms to try to achieve
in the market and have a negative effect on its policy objectives. For example, spectrum
competition. For example, imposing a minimum trading is increasingly used as an alternative
price for a product stops firms competing for to administrative spectrum pricing in the
consumers on the basis of price. A restriction communications sector.
on the number of suppliers in a market (for
A further issue for policy makers to be aware of
example, through a licensing framework)
is that of ‘regulatory capture’, when regulation
reduces the competitive pressure on existing
ends up benefiting the industry regulated
firms from the threat of new rivals taking
rather than the wider public. The main problem
market share.
for policy makers here is their information
Regulations on product characteristics, disadvantage. In order to design a policy,
standards and quality will generally impose information is frequently needed from firms,
fewer direct restrictions on competition. who may have an incentive to strategically
But they can have important indirect effects. provide information that will ensure beneficial
For example, setting a minimum product regulation from their perspective. Here, market-
standard can remove certain goods from a based instruments tend to have an advantage
market (that is, those that fall below the over command-and-control approaches, as the
standard) even though some consumers may amount of information needed ex ante by policy
wish to buy them. Similarly, quality regulations makers is lower.17
can raise costs of entry, which discourages
potential new rivals from entering the market.
17 Helm (2002).
In any affected market, would the proposal: – the characteristics of the product(s)
supplied, for example by setting
1. Directly limit the number or range minimum quality standards
of suppliers?
• limits the scope for innovation to introduce
This is likely to be the case if the new products or supply existing products
proposal involves: in new ways
• the award of exclusive rights to supply • limits the sales channels a supplier can
use, or the geographic area in which a
• procurement from a single supplier or
supplier can operate
restricted group of suppliers
• substantially restricts the ability of
• the creation of a form of licensing
suppliers to advertise their products, or
scheme, or
• limits the suppliers’ freedoms to organise
• a fixed limit (quota) on the number
their own production processes or their
of suppliers.
choice of organisational form.
2. Indirectly limit the number or range
4. Reduce suppliers incentives to
of suppliers?
compete vigorously?
This is likely to be the case if the proposal
This may be the case where a proposal:
significantly raises the costs:
• exempts suppliers from general
• of new suppliers relative to
competition law
existing suppliers
• introduces or amends an intellectual
• of some existing suppliers relative
property regime
to others, or
• requires or encourages the exchange
• of entering or exiting an affected market.
between suppliers, or publication of
information on prices, costs, sales or
3. Limit the ability of suppliers
outputs, or
to compete?
• increases the costs to customers of
This is likely to be the case if the proposal:
switching between suppliers.
• controls or substantially influences
– the prices(s) a supplier may charge
Government in markets 25
8. Subsidies and taxation18
18 More detailed guidance on the competition effects of subsidies is given in OFT and HM Treasury (2007).
19 EC DG Comp (2008).
20 Related to this is the argument about economies of scale: for new (here, environmentally friendly) products to reach a high enough level of
market uptake to make a difference, a critical mass needs to be developed. The Government can help in ‘priming’ the market by sponsoring the
development and dissemination at early stages.
Government in markets 27
Box 8.1: Airline subsidies and the case of Aer Lingus
In 2001 the European Commission decided future, but despite being denied state aid
not to allow more state aid to airlines. The and facing increased competition from
Belgian national carrier Sabena went RyanAir, it managed to cut costs by 30
bankrupt shortly afterwards. The Irish per cent over a two-year period, became
national carrier Aer Lingus faced a similar profitable, and expanded its route offering.
Some subsidies will also distort or threaten to Government should be wary of supporting
distort intra-community trade. Where subsidies industries or firms to carry out activities for
constitute state aid, they will require legal which there appears to be limited consumer
cover which may mean seeking forward demand – the risk is that, despite the subsidy,
approval from the European Commission. consumers continue to ignore the product.
Intervening to influence consumer demand
The thresholds for meeting state aid tests of
may be a less wasteful way of achieving the
distorting competition and affecting intra-
same end.
community trade are very low. However not all
aid is illegal. A general block exemption regime Similarly, no matter how worthy the cause,
exists which allows specific subsidies: in favour supporting individual firms and industries
of SMEs, for R&D, innovation, training, regional could lead to the displacement of other
development, employment, environmental activities, particularly where resources are
protection, as risk capital, and for promoting scarce. Finally, if Government does choose to
entrepreneurship.23 intervene it is typically better to introduce
horizontal measures that do not discriminate by
In addition, the Treaty allows for Government to
location, industry, or firm. Overall, these tend to
provide subsidies to failing firms in the form of
be less distortive.
rescue and/or restructuring aid.24 Any aid
granted by individual member states which is A subsidy is more likely to cause competition
found to be incompatible with the Treaty will be concerns if it is designed to be very large, be
reclaimed.25 provided to only one or a few firms in the
market, affect the recipient’s average rather
Even where there are no intra-EU effects, it is
than fixed costs, or occur more than once.26
important to minimise the potential side-effects
of a subsidy. To do so, policy makers need
carefully to consider both the design of the
subsidy and the market in which the recipient
firm operates.
27 OFT (2004).
28 Assuming products are close substitutes, the non-recipient firms may be unable to lower their price to compete with the recipient firm,
and will thus lose market share and, in the worst case, even be pushed out of the market.
29 OFT (2007b).
30 London Economics (2004).
Government in markets 29
Box 8.2: State Aid to Northern Rock
Government in markets 31
Box 9.1: Food Standards Agency salt campaign
Population average salt intakes in the UK are • working with the food industry to reduce
currently at 8.6g per day, considerably above levels of salt in foods as around 75 per cent
the 6g intake target set for adults. Excessive of the salt we eat is already in the every
salt consumption can increase the risk of day foods that we buy, and
having high blood pressure, which in turn
• front of pack labelling to provide additional
increases the risk of heart disease and stroke.
information to consumers on the levels of
The Government’s work to reduce salt salt (and other nutrients) in food.
intakes is conducted by the Food Standards
The programme of work has been successful
Agency and the Department of Health, the
in reducing average daily intakes. There has
key aim of which is to reduce average
been a decrease of 0.9g per day compared to
population salt intakes to 6g a day for adults,
levels measured in 2000/01 (when intakes
and to meet the recommendations for children
were at 9.5g), and this reduction equates to
(who should have less). This policy objective
the prevention of around 6,000 premature
is pursued through three main strands:
deaths every year and a saving of £1.5 billion
• a public campaign to raise consumers’ to the economy.
awareness of why a high salt intake is bad
Further details are available on the FSA
for their health and what they can do to
website at:
reduce intakes
www.food.gov.uk/healthiereating/salt
32 OFT (2008c).
33 BERR (2008a).
Government in markets 33
10. Government as a market maker
34 DTI (2005).
35 Policy makers should take care to ensure that user choice competition provides benefits to everyone and not just the individuals who actively
make a choice. If not, this could lead to increased inequality where not all consumers have access to the same information, which could have
negative impacts.
36 Portney and Stavins (2000).
37 It would be possible for Government to achieve cost effectiveness through a ‘command and control approach, but it would require access to
very detailed information about all firms’ costs and technology options for reducing pollution.
38 Portney and Stavins (2000).
39 Ibid.
Government in markets 35
schools that are better than the one they would A recent review of US voucher pilots concluded
normally be allocated to (the direct effect), and that there was no conclusive evidence for the
increased competition would encourage other potential for user choice to improve public
schools to improve in an effort to attract schools.40 A possible reason is that users
students, so the students whose parents consider different indicators of quality – for
do not make a choice benefit as well (the example sport facilities or religious affiliation –
indirect effect). that do not necessarily match the Government’s
objectives of improving the overall quality
of education.
The Stern review of the Economics of allowance will reflect the marginal cost of
Climate Change (2006) called climate change CO2 reduction. In general, this type of
‘the greatest and widest-ranging market intervention is not likely to cause significant
failure ever seen’ and made it clear that distortions of competition. It encourages
urgent action was needed to reduce CO2 efficiency and innovation, and rather than
emissions to avoid future harm. It also distorting firms’ incentives, the scheme
emphasised the need for a price driven ensures that CO2 is seen as another input
instrument, common across countries, to (like fuel) which the firm then seeks to
reflect the damage CO2 emissions were minimise the cost of.
causing the environment, as well as to allow
The development of the EU Emissions
flexibility in how, when and where emissions
Trading Scheme also demonstrates some of
reductions are made.
the difficulties in designing market-based
Through the EU Emissions Trading Scheme, approaches. For example, there could be
Governments cap CO2 emissions in certain issues of increasing barriers to entry, and the
sectors and allocate allowances to emit on a scheme would have to be designed to allow
national level. Allowing firms to trade their adjustments in the cap to reflect the size of
allowances led to the establishment of a the market. There could be some concern
market for carbon emissions. More ‘carbon over ‘carbon leakage’ and the
efficient’ firms can sell excess allowances to competitiveness of firms in the scheme
less efficient firms, while overall emissions compared to firms outside. And there is
reduce in line with the cap. ongoing discussion about how carbon
permits should be allocated initially. Arguably
The establishment of a market provides an
an initial auction of permits could improve the
incentive for firms to invest in cost-effective
efficiency of the market.
CO2 reducing technologies; the cost of an
41 More detail on the competition impacts of public procurement can be found in OFT (2004), ‘Assessing the impact of public sector procurement
on competition’.
42 OECD (2007b), page 7.
43 BERR (2008b).
44 The term ‘public service industry’ refers to firms involved in providing public services on behalf of Government.
Government in markets 37
from the private sector. Partnership A possible risk to value for money of
arrangements can be used to share risks with Government procuring goods and services
the private sector, and in some cases to give from the private sector comes from the
the public sector a degree of longer-term control potential for collusion, or bid rigging. This
over assets. occurs when firms that would otherwise
be expected to compete collude to raise the
Buyer power price or lower the quality of the goods or
services bought by the Government.
Public procurers can be said to have buyer
power where their individual purchasing Such behaviour is illegal under competition law.
decisions influence the overall prices and The OFT is currently investigating 112 English
products provided in a market. Like private construction companies alleged to have been
sector buyer power, public sector buyer power involved in bid rigging in a diverse range of
may come from two main sources: projects, including tenders for schools,
universities and hospitals. To foster competition,
• buyer power may be related to the size of OECD guidelines for fighting bid rigging in
demand of the public sector relative to the procurement can help Government to design
total demand in a particular market, or tenders to detect and hinder bid rigging during
• a buyer may enjoy power because it is the tender process.45
a strategically important customer for Long-term effects
its suppliers.
This includes long-term effects on investment,
Buyer power can be good for consumers innovation and the competitiveness of the
because it can drive down prices and encourage market, that is, effects that capture changes in
suppliers to become more efficient. market structure and technology caused by
There are three main channels through which public procurement. This could be reflected,
procurement can affect competition: short-term for example, in the level of competition in
effects, long-term effects and knock-on effects future tenders.
on other buyers. Where Government is able to use its buyer
Short-term effects power, it may have opportunities to ‘manage
competition’ among suppliers to shape the
Short-term effects include effects on the
market structure in order to achieve long-term
intensity of competition amongst existing
efficiency, by encouraging innovation and
suppliers in a particular tender, taking the
investment. Buyer power could be an effective
number of firms in the market, the range of
control for entry of efficient firms and exit of
products available and the underlying
inefficient ones and creation of new products.
production technology as given.
45 OECD (2009).
Government in markets 39
Box 11.1: Waste procurement
The OFT worked closely with the Office of waste collection sector. This should
Government Commerce (OGC) and the encourage more bids.
Department for Environment, Food and
• When including in-house providers in an
Rural Affairs (Defra) to examine the effects
invitation to tender, local authorities should
of public procurement on competition and
take care to ensure competition on a level
capacity in the municipal waste sector.
playing field so that private suppliers are
The value of the sector is estimated to be
not discouraged from bidding.
approx £2bn. ‘More Competition, Less
Waste’ was published by the OFT in 2006, The OFT’s recommendations for municipal
making recommendations to central and local waste treatment included:
Government for encouraging more • Local authorities should tender separately
competition for municipal waste collection for municipal waste treatment contracts
services. and landfill contracts. Priority should be
There were concerns that, as the treatment given to finding mechanisms to deliver bids
sector grows, local authorities should avoid from a number of suppliers, both within
over dependency on a limited number of and outside the region which will mitigate
suppliers. The recommendations included: the risk of regional monopolies.
• Local authorities should set contracts of • Local authorities should guard against the
a sufficient length to allow suppliers a risk of collusion. For example, information
reasonable return on their investment, relating to waste management contracts in
but in general no longer than five years. the pipeline may encourage bidding, but
care needs to be taken to avoid giving
• Local authorities should avoid setting
suppliers the ability to collude and share
selection criteria that require suppliers to
out contracts.
have previous experience in the municipal
Government in markets 41
and allows private firms to compete for the suggested that greater access to public sector
operation of these markets within a regulatory data by commercial firms could generate
framework. This has been applied in sectors benefits of at least £500m per year.
such as the postal service, broadcasting,
Where public sector bodies are engaged in
transport and utilities.
mixed markets alongside private firms, it is
In some cases, Government may also be able important for the public bodies to ensure that
to generate greater economic benefits by they are not exploiting unfair advantages over
allowing third party access to public sector the private sector and stifling innovation or
assets. For example, the OFT’s market study improved efficiency that private firms may
on commercial use of public sector information bring to the market.
Many public bodies hold valuable information UK economy, contributing around £1bn
assets. For example, Met Office weather per annum.
data, Ordnance Survey mapping data, and
Subsequent Government reviews, including
Land Registry information all have significant
the Trading Funds Assessment, have set out
potential in commercial applications.
principles of improving access to public
In many cases where private firms can add sector information. These principles are:47
value to public sector information, such as
• information easily available – where
in-car navigation systems, the public sector
possible at low or marginal cost
information holder is the monopoly provider
(typically because of high fixed costs of • clear and transparent pricing structures
collection, or statutory collection powers). for the information, with different parts
In some cases the public sector body may of the business accounted for separately
also be competing with private firms in the • simple and transparent licences to
downstream market for value added facilitate the re-use of information for
products. purposes other than that for which it
In its 2006 market study,46 OFT concluded was originally created, and
that access to unrefined public sector • clearly and independently defined –
information needed to improve, and with input from customers and
estimated that the potential benefits of stakeholders – core purposes
increased competition could include a (‘public tasks’) of the organisations.
doubling of the value added to the
46 OFT (2006c).
47 HMT (2009b), page 41.
48 www.oft.gov.uk
49 Further information on Competition Act 1998 can be found at www.oft.gov.uk/advice_and_resources/publications/guidance/competition-act and
http://ec.europa.eu/competition/antitrust/overview_en.html
50 Further information on merger control can be found at www.oft.gov.uk/shared_oft/mergers_ea02/oft527.pdf
Government in markets 43
assets or the creation of a joint venture may be by way of an order. The order can require
also give rise to merger situations. The Act’s businesses to change their practices.
provisions apply both to mergers that have In appropriate cases it can also require
already taken place (subject to time limits) and divestment of parts of a business.
to those that are proposed or in contemplation.
All else being equal, a merger of two firms will Consumer Law
result in fewer firms competing in a market,
which could have detrimental effects on Consumer protection laws aim to ensure
competition and consumers. that consumers are not disadvantaged by
businesses that do not comply with their legal
Under the Enterprise Act 2002, the OFT has responsibilities by providing consumers with
a function to obtain and review information information and protection, and establishing
relating to all anticipated and completed merger their rights in relation to traders they deal with.
situations, and a duty to refer to the Competition The following paragraphs highlight some of the
Commission for further investigation any main consumer protection laws, but this is not
relevant merger situation where it believes intended to be comprehensive.
that it is or may be the case that the merger
has resulted or may be expected to result in a Unfair Terms in Consumer Contracts
substantial lessening of competition in a UK Regulations 1999
market. Mergers with an EU-wide dimension These Regulations protect consumers against
are covered by the European Commission the use of unfair standard terms in contracts
under the EC merger regulation.51 they make with traders. The OFT, and certain
other bodies, can take legal action to prevent
Market investigation references
the use of such terms.
In addition to enforcing the two prohibitions in
All business suppliers using standard contract
the Competition Act and Article 81 and 82, the
terms with consumers must comply with these
OFT may refer a market to the Competition
Regulations. A standard term is unfair ‘if,
Commission for further investigation if (applying
contrary to the requirement of good faith, it
the test in section 131 Enterprise Act 2002) it
causes a significant imbalance in the parties’
has reasonable grounds to suspect that one or
rights and obligations arising under the contract,
more features of a market in the UK prevents,
to the detriment of the consumer’. Unfair terms
restricts or distorts competition in connection
are not binding on the consumer.52
with the supply or acquisition of any goods or
services in the UK (or a part of the UK). The OFT produces general guidance on
Following any reference, the Competition unfair contract terms as well as industry
Commission will investigate the market or specific guidance.
markets concerned and publish a report setting
Consumer Credit Act 1974
out its view as to whether there is an adverse
effect on competition. If it finds an adverse This Act establishes a regime for the protection
effect, it must consider and put in place of consumers in credit and related transactions
remedies to address it. The remedies can and a licensing system for traders concerned
with the provision of credit or the supply of
51 Regulation 139/2004/EC.
52 www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311.pdf
53 www.oft.gov.uk/shared_oft/business_leaflets/cpregs/oft979.pdf
Government in markets 45
Annexe B
References
Government in markets 47
OFT (2008b), ‘Unfair contract terms guidance’,
www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311.pdf
OFT (2009a), ‘Northern Rock: The impact of public support on competition‘
www.oft.gov.uk/shared_oft/reports/financial_products/oft1068.pdf
OFT (2009b), ‘Mergers: Jurisdictional and procedural guidance’
www.oft.gov.uk/shared_oft/mergers_ea02/oft527.pdf
OFT (2009c), ‘The economics of self-regulation in solving consumer quality issues’,
www.oft.gov.uk/shared_oft/economic_research/oft1059.pdf
OFT and HMT (2007) ‘Guidance on how to assess the competition effects
of subsidies’, www.oft.gov.uk/shared_oft/reports/comp_policy/oft829.pdf
Portney and Stavins (2000) ‘Public policies for environmental protection’,
RFF Press
Rouse and Barrow (2008) ‘School Vouchers: Recent Findings and Unanswered
Questions’ Economic Perspectives, Vol. 32, No. 3, 2008
Notes
Notes
OFT publications are available at:
www.oft.gov.uk/publications
Call 0800 389 3158 to request this
publication in a different format.
www.oft.gov.uk