High Level Roundtable on:

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1 Seventh United Nations Conference to review the UN Set on Competition Policy Geneva, 6-10 July 2015 High Level Roundtable on: The role of competition policy in promoting sustainable and inclusive growth and development Contribution By Eleanor M. Fox New York University School of Law Making markets work for the people as a Post-Millennium Development Goal The views expressed are those of the author and do not necessarily reflect the views of UNCTAD

2 I. Introduction In its Declaration on the Right to Development in 1986, the United Nations General Assembly called for an approach to guarantee the meaningful participation of all in development and in the fair distribution of its benefits. 1 On the run up to 2000, the United Nations promulgated the eight millennium development goals to be achieved (sometimes in part) by 2015, from eradicating extreme poverty and hunger to achieving universal primary education to ensuring environmental sustainability. The means for achieving the goals were generally identified in terms of money that would flow from the richer to the poorer such as providing funds and forgiving debts has come. Progress has been made. But a critical problem of severe poverty still exists and the gap between rich and poor continues to widen. 2 The United Nations has taken stock of the gains made, and it is readying post-2015 sustainable development goals (SDGs) for adoption by the General Assembly in September The Open Working Group of the General Assembly has produced a list of 17 proposed SDGs. These range from ending severe poverty and reducing inequality to urgently combatting climate change. 3 Goal 8 has particular relevance to our inquiry today: Promote sustained, inclusive and sustainable economic growth. The Secretary General has proposed an integrated set of six essential elements of the SDGs, including 1) Dignity: to end poverty and fight inequalities, and 2) Prosperity: to grow a strong, inclusive and transformative economy. The document states: Economic growth should lead to shared prosperity. The strength of an economy must be measured by the degree to 1 Quoted in the synthesis report of the Secretary General on the 2015 sustainable development agenda: The road to dignity by Dec ( Secretary General s Report ). 2 Economist, May 23, 2015, Poverty rates. 3 Secretary General s Report, p

3 which it meets the needs of people, and by how sustainably and equitably it does so. (para. 72) While some of the quoted language, and more (see investment in sustainable technologies, paras ), nods towards markets, the bulk of the proposed solutions entail financial contributions such as urging developed member states to meet the target of 0.7% of gross national income in official development assistance (ODA). All branches of the United Nations are urged to include the SDGs centrally in their agendas, nudging each member state to ply its oars for the good of the whole in making this world The World We Want. Thus, the question for this Forum: What is the role of competition law and policy? How does it fit or not fit with the (expected) SDGs? Is it in sympathy or in tension? Where it is in tension, must it take second seat; i.e., should we presume that where poverty, equality and the environment are at stake, antitrust law should bend? The UNCTAD Secretariat has written an excellent note on The role of competition in promoting sustainable and inclusive growth. 4 I recommend to you particularly the passages explaining the role of competition in providing more and better goods and services and thus promoting consumer welfare, calling for prioritization of sectors that matter the most to the people and the economy, and pursuing the role of competition advocacy in tearing down barriers in priority sectors. I take a different tack from the Secretariat Note in two respects. The first I will call global. It is not a disagreement with the Secretariat Note but an addition. It is a call for putting markets (Making markets work for the People) on the SDG agenda. The second involves exemptions from antitrust and expansions of antitrust: authorizing anticompetitive agreements and conduct to advance non-competition goals such as the environment or promoting small business. Should antitrust bend? How readily, and by what standard? Should antitrust expand to encompass fairness? 4 27 April 2015, TD/RPB/CONF.8/6. 3

4 II. Making Markets Work for the People Competition law and policy helps the people in two ways. One, which has been much discussed and has been elaborated in OECD and UNCTAD fora, 5 is lowering prices and increasing quality of goods and services. Agencies may choose priorities with a view to helping, in particular, the poorer population. Priorities should include bid rigs that exploit the State as buyer, for the poorer population depends disproportionately on services by the State. When the prices of procured goods rise, fewer of these goods and services (highways, transportation, health care, schools, and childrens' lunches) are available. I shall not elaborate on this aspect further, for the country submissions to the OECD for its project on competition law and poverty, and the secretariat report, are rich in detail. 6 The second way in which markets help the people is enabling their participation in the economic enterprise. The freedom to participate, and not to be swept aside by privilege and power, is not only a personal freedom that enhances dignity but a source of livelihood that lifts people out of poverty by empowering them. We may take lessons from political philosophers and economic observers as diverse as Amartya Sen, Friedrich von Hayek, and Hernando de Soto. If farmers in Benin must accept price-fixed fertilizers (auspices, the potash cartel), the cost of the input may be so high as to reduce the farmers to subsistence living or worse, starve their families and malnourish their children. But if the farmers can obtain the inputs at a competitive price, they can produce a reasonable crop and even sell for export (if not blocked by developed country import restraints). Similarly for cotton, if the farmers can produce and sell in markets undistorted by subsidies granted to Western agribusiness. Similarly, if budding entrepreneurs, poor and unconnected, can enter basic markets free of excessive, incumbent-protecting 5 See 6 See supra. 4

5 regulatory requirements that they cannot hope to hurtle, they can be a part of the economic enterprise rather than supplicants to it. This freedom and opportunity to enter and rise in the mainstream of economic life empowers and builds dignity and reciprocally serves the people as consumers. Not incidentally, as noted by Paul Collier in THE BOTTOM BILLION and before him by Hernando De Soto in THE OTHER PATH, this freedom is a steam valve warding off societal disaffection that seduces young people into gangs of violence and produces dysfunctional societies. The competition family knows the value of markets. But a critical mass of individuals who put the poverty trap and the inequality gap at the top of their action lists distrust markets. They see markets as the enemy that help the rich exploit the poor, caricaturing free markets as the fuel that produces Bernie Maydoffs and economic crises. They count markets as part of the problem. 7 The post-millennium goals dialogue needs an infusion of understanding of the virtues to ordinary people of open markets, policed by competition laws, in achieving the dignity and empowerment goals of The World We Want. III. Integrating competition law and policy with SDGs Once it is appreciated that open markets, working for people without power stands side by side the other goals and methodologies to counter poverty, promote dignity and achieve sustainable inclusive development, the extent to which antitrust law should stand aside takes on a different complexion. Yes, sometimes market rules must bend, but not often and not so fast. In this section I address exemptions, fairness, and other public interests. The Secretariat Note suggests that fairness should be a major ingredient of competition law and policy and sees a 7 This seems to be the sentiment of Oxfam s Briefing Paper 178, Working for the Few, 20 January (The Briefing Paper also presents many valuable statistics and observations.) But see, for reliance on the market as the solution, Promoting Market Access for the Rural Poor in Order to Achieve the Millennium Development Goals, IFAD Discussion paper (2003). 5

6 rather robust role for exemptions from antitrust law; for example, for agreements that promote economic progress, environmental protection and green technologies. (p.1) I shall argue that exemptions are not needed for the first of these goals and seldom needed for the latter two. Let me articulate three perspectives about whether and how linkages to SDG goals require compromise of antitrust principles: 1) Antitrust law is efficiency or consumer welfare law; it promotes aggregate efficiency (or consumer welfare). The SDGs are about equity and non-efficiency goals. Admissibility of non-efficiency considerations undermines efficiency. It opens the door to unbridled discretion as well, further undermining efficiency. Antitrust policy makers should not be seduced into such compromises. However, economic disciplines can be used to solve problems of environmental protection more efficiently, as in capand-trade pollution permits. 2) The SDGs are higher goals or values than efficient markets, and antitrust should give way flexibly, as needed, to serve them. 3) Open markets and access to them are critically important tools for efficiency, opportunity, mobility, and economic well-being, and for serving most of the SDG agenda; it is very rarely necessary to sacrifice the market and personal benefits in order to facilitate the SDG goals. The Secretariat Note seems to adopt option 2 as the governing principle. I propose option 3. First, I shall explore exemptions. Second, I shall explore antitrust extensions for fairness. Third, I shall focus on the agriculture sector, for agriculture is highlighted in the MDG/SDGs, given its place as the epicenter of global poverty. Fourth, I shall mention public interest. Exemptions. My first point concerns a semantic confusion that has produced an exaggerated view of conflicts between antitrust and SDGs and thus the need for exemptions. 6

7 An antitrust exemption is needed when an agreement or conduct is anticompetitive, but society wants to endorse it anyway to serve a notionally higher value such as health or the environment or ameliorating the plight of farmers. If one analyzes carefully to determine whether the agreement is indeed anticompetitive, and then whether its existence is important to protect (e.g.) the environment, I submit that one will find very little conflict between antitrust and social goals. But there is a threshold issue. A semantic problem has crept into the law that creates an appearance of conflict when none exists. The problem stems from EU competition law, which is exemplary in so many ways but nonetheless has spawned this confusion. The wording of the Treaty article, now TFEU 101(1), is so broad that, in the first instance, it catches all agreements that are said to distort competition, broadly conceived. Under subparagraph (3), the first subparagraph of Article 101 may be declared inapplicable if the agreement promotes economic progress and consumers will get a fair share of the benefits. The terminology created for a declaration of inapplicability by the European Commission was exemption, although one can easily see that subparagraph (3) is merely a mode for completing the analysis of whether the agreement is good or bad for competition and consumers. Since 2004, when the European Union devolved powers of enforcement to the Member States, a Commission exemption for 101(3)- compliant agreements has no longer been necessary or even available; but the vocabulary of exemption persists. Perhaps this terminology will live on because history runs deep; Article 101 has had a powerful impact on the world. Many nations have adopted the language of Article 101. This requires an alertness to distinguishing an Article 101(3) exemption from an exemption for an anticompetitive, consumer-harming agreement for the sake of non-market goals. Only the latter 7

8 is what we are asked to consider to accommodate SDGs. We do not need an exemption from antitrust for agreements that promote economic progress, because antitrust does not prohibit such agreements. But what if an agreement is truly anticompetitive and the claim is made that the agreement would protect the environment? Let us consider two cases. The first is the EU case, CECED. 8 The washing machine manufacturers decided that cheaper washing machines were environmentally unsound and they agreed not to market the cheaper machines. This was a cartel. It would cause the price of washing machines to go up. Indeed, one would expect that even the price of the higher-end machines would rise to reflect the new market power of the collaborators. But was the price-effect just a by-product of a good way to protect the environment? Are we confident that the manufacturers correctly identified and took off the market only the environment-harming machines? There is no reason to be confident. Moreover, the machine makers had an alternative course. They could have promoted their environment-friendly machines to environmentally-concerned consumers. And they and true environmentalists could have sought legislation to identify the problem and lay down industry requirements. The second example is the Chicken for Tomorrow. The Chicken for Tomorrow was an industry-wide agreement of Dutch suppliers and supermarkets to improve animal welfare and the environment by agreeing to new minimum standards slower breeding (more breeding days), less crowded barns, and more dark hours. The supermarket parties agreed to completely replace all chicken in their bins with the higher-priced product. The Dutch authority investigated how much consumers were willing to pay for more animal welfare. It treated the agreement as exemptible if consumers sufficiently valued the gains in animal welfare. It found that consumers 8 The Commission exempted this agreement. Commission Decision, Case IV F 1/ O.J. L 187/47 (26 July 2000). 8

9 did value the gains, but not sufficiently to cover the increased costs, and it denied an exemption. 9 Had consumers been willing to pay for the increased costs of the Chicken for Tomorrow, presumably an exemption would have issued. This agreement, too, was a cartel. It was predictably price-raising probably above the incremental animal welfare costs, to capture cartel-power profits. Presumably, environmentallyconscious chicken breeders could win consumer loyalty by advertising the chicken-welfare virtues of their methods as many do now. If consumers want to pay for better treatment for the chickens they ultimately eat, they will do so without industry agreement. Why tolerate the producers conduct in shutting out suppliers of cheaper chickens to poorer consumers? Is it a useful and effective way to set good national standards? Legislation regulating barnyards in the interests of animal welfare would have more legitimacy. 10 The Chicken for Tomorrow and CECED are cautionary tales caution about relaxing antitrust to save the animals and the environment. Relaxing antitrust is seldom an efficient tool to achieve the valued social goals of the SDGs, while cartels are efficient tools for raising prices. But what if exemptions are efficient to protect the welfare of those least well off? The agricultural industry is an example, which I deal with below, after a discussion of fairness. Fairness: Fair competition; fair bargaining Should competition laws embrace a principle of fair competition, and would extension to fair competition increase the sympathy of antitrust with the SDGs in helpful ways? 9 Klewercompetitionblog.com/2015/02/18valuing sustainability. 10 The antitrust objection is not the industry s discussing and even agreeing to best practices. The antitrust objection is agreeing not to deal in the lower-priced product. From a public policy point of view, the industry is not well positioned to make the trade-off between more animal welfare and higher prices. 9

10 Fair competition may be at odds with the hard competition valued by the competition laws. First, one must define terms. Fair competition is a slippery phrase. If fair competition means requiring firms to pull their punches so as not to harm their higher-costs rivals, the principle is directly in tension with the competition laws and would deprive competition laws of their benefits. It is not necessary or desirable to have such a rule of fairness to be in sympathy with the SDGs. If on the other hand one has in mind by fairness: Giving regard to competition on the merits by people without power, 11 the principle can facilitate efficient inclusive development. The fact that fairness can have meanings that are 180 degrees apart signals the danger in proposing generally that competition law should mean free and fair competition. Fair bargaining. Markets often work poorly for suppliers and buyers in developing countries. The suppliers and buyers are often sorely exploited. The bargaining power lies abroad, or with State-owned monopolies in their own economy. Many or most competition laws, following language of the European Treaty, prohibit prices that are unfairly high (excessive pricing) or unfairly low (largely but not necessarily exclusively predatory pricing). Massive disparities in bargaining power actually may go to the heart of the SDGs, particularly when prices are so high that the poorer people cannot afford the necessities of life. Excessive pricing law is commonly used judiciously, lest the price mechanism be unduly constrained and lest the competition authority become a price regulator. There is pending debate as to the appropriate standards of proof for excessive pricing violations in developing countries. The South African Sasol 12 and Mittal 13 cases are good examples of different points of view. The Competition 11 This is the approach taken by the South African Competition Tribunal. See Nationwide Poles v. Sasol (Oil) Pty Ltd., case 72/CR/Dec03 (Competition Tribunal 2003), rev d, 49CACAApril05 (Court of Appeal 2005) (reversing on the basis of the statutory text). 12 Competition Commission v. Sasol Chemical Industries Limited, Case No: 48/CR/Aug10 (Competition Tribunal 2014), rev d, Case No: 131/CAC/Jun14 (Court of Appeal 2015). 10

11 Tribunal has searched for standards that are capable of being met by plaintiffs, particularly in cases of state-owned or recently privatized firms that have a very high degree of persistent market power, while the Court of Appeal has imposed a higher bar. A critical mass of jurisdictions also has laws against Abuse of a Superior Bargaining Position or Abuse of Economic Dependence. This offense is most often invoked to strike unconscionable contract terms other than pricing terms. Antitrust of many (but not all) Western nations is reluctant to interfere with bargains, and would leave to contract law unconscionable one-sided deals. Moreover, the question is one of distribution, not allocation, which some Western jurisdictions shun as undermining efficiency. But even if contract law may in theory be best placed to deal with problems of extreme exploitation by contract, in developing countries the competition authority may in fact be the only point of recourse, and the harm is, after all, a market harm produced by excessive market power. For systems of antitrust that insist on allocative goals only and insist that distributive goals undermine efficient allocations, the reach of antitrust to fairness in bargaining is a point of conflict between antitrust and the SDGs. Moreover, it should be noted in this and the wider debate that the long-held Okun hypothesis 14 of a large equity/efficiency trade-off has been deeply undermined, if not proved wrong Harmony Gold Mining Company Ltd. v. Mittal Steel Corp., Case No. 13/CR/Feb 04 (Competition Tribunal 2007), rev d, Case No. 70/CAC/Apr 07 (Court of Appeal 2009). 14 Arthur Okun, EQUALITY AND EFFICIENCY, THE BIG TRADEOFF (1975). 15 See Andre Berg and Jonathan Ostry, Equality and Efficiency: Is there a trade-off between the two or do they go hand in hand?, Finance & Development, IMF (Sept. 2011). 11

12 Agriculture Agriculture is a particularly relevant sector. In many of the poorest developing countries, more than 70% of the population live in rural areas and depend on agriculture for their livelihood, and most of this agrarian population lives in deep poverty. If SDGs are to be addressed, the plight of the poor small farmers must be considered. Agriculture is a prime example of atomized suppliers and concentrated buyers, where the disparate bargaining power and thus extreme vulnerability (often in a politicized atmosphere of pressure by vested interests) is addressed in many jurisdictions by antitrust exemptions. The European Union provides an example of wise rules recently adopted. Agriculture rules specify the conditions under which farmers may sell jointly and may jointly set prices exempt from antitrust prohibitions. The conditions for exemptions specify that the farmers must cooperate in integrated organizations. They may integrate in many ways; for example, by sharing equipment and storage facilities, jointly procuring inputs, sharing transportation facilities, jointly distributing, and jointly assuring quality control. The integrated activities are expected to yield efficiencies. To guard against creation of market power, the volumes marketed by each cooperative may not exceed certain thresholds, guaranteeing competition among the cooperatives. 16 This is an example of an exemption that need not be called an exemption (although the rules helpfully give clarity and give certainty to the farmers of what they can and cannot do). The cooperative groupings are integrated joint ventures, which produce efficiencies. The 16 See speech by Director General Alexander Italianer, Co-operating to Compete: The New Agriculture Antitrust Guidelines, Brussels, 4 March

13 competition among the cooperating groups should assure competitive outcomes to consumers. In many jurisdictions, however, we see political solutions that are less kind to efficient processes. 17 While the agriculture sector is often invoked in the context of exemptions from antitrust (even for efficient outcomes), it may also be invoked in a positive enforcement context What can antitrust law do to protect the agricultural sector from restraints that exemplify the SDG concerns? In theory, antitrust can: 1) Protect the farmers from world input cartels, such as fertilizer cartels, but the poor farmers in poor countries with under-resourced agencies are generally powerless to protect themselves and there is no world antitrust to help them. 2) Protect the farmers from monopsonistic strategies that abusively exploit patent rights and prevent lowcost efficient use of seeds, as charged against Monsanto by the United States; but charges were dropped. 3) Protect the farmers from mergers that significantly increase buying power, as in Nestle s mergers in the cocoa/chocolate industry. But Western enforcers may find no harm to their consumers, and they regard harm to upstream suppliers as not their problem. Thus, the authorities approve mergers that further squeeze even efficient farmers, and the harmed nations and people have no practical power to enjoin the transaction. The right result does not require a bending of antitrust. It requires regard for a poor and powerless constituency; some would say altruism. There is no world antitrust to protect the vulnerable small suppliers from buying power-creating mergers. Public Interest I have already reflected on public interest considerations in the discussion of exemptions. I shall add one more point here: the interests of jobs and small suppliers in mergers. Many 17 See Juan David Guttierrez, Agricultural Exemptions to Competition Law, 6 Rev. Derecho Competencia Bogota, 173 (2010). 13

14 jurisdictions allow or mandate consideration of public interest in merger laws. It is vigorously debated as to whether such laws are wise, and I do not engage with the debate here. I would observe, however, two lessons from South Africa, whose law requires consideration of public interests. Many mergers entail large layoffs, and a number of South African merger decrees require that the merging parties provide or fund job retraining for the individuals laid off. 18 The merger has imposed this cost on society, and the merging parties must pay the cost ameliorating the plight of vulnerable individuals and helping them to help themselves. Second, in connection with the Wal-Mart/Massmart merger, 19 where displacement of small suppliers became an issue, clearance was conditioned, not on quotas or buy-national agreements, but on Wal-Mart s providing and stakeholders administering a large fund for capacity building of the small suppliers training and transfer of knowledge with a view to grooming the small suppliers to join a global value chain. Both examples are market friendly links to the SDGs. Conclusion Markets empower people to help themselves. Markets should stand side-by-side food, health, shelter, education, environment, infrastructure, and institutions as goals or tools to combat the world s greatest economic deprivations. Making markets work for people without power deserves to be an SDG. 18 See, e.g., Metropolitan Holdings Limited, Case No: 41/LM/Jul10, Competition Tribunal. 19 See 14