|National authorities are at the coalface of competition law enforcement around the world. This collection of video-interviews, recorded by CPI from July through November 2021, spans the globe. It features the voices of the heads of National Competition Authorities (“NCAs”) in a cross-section of jurisdictions, namely Australia, Belgium, Brazil, Chile, Colombia, Egypt, Germany, Greece, Mexico, Portugal, Spain, and the UK.Each NCA clearly faces its own unique challenges. However, there are transversal themes that face every national authority. Specifically, all must deal with the new questions raised by the modern technology-driven platform economy, and the particular challenges raised by the global pandemic over the past couple of years.
Leaving these global economic trends aside, if there is one key theme to this set of talks, it is that authorities are institutions, and institutions are composed of people. It is vital to hear the voices of those people who in fact do the real work of competition enforcement and policymaking.
By doing so, we can begin to understand their efforts, and to learn from their collective experiences. Hopefully, by listening to these voices, we can gain some insight into the past, present, and future of antitrust enforcement in practice.
View the PDF of this synthesis HERE.
National Economic Prosecutor, Fiscal Nacional Económico
Margarida MATOS ROSA
President, Portuguese Competition Authority
President, German Federal Cartel Office
Chair, Competition and Markets Authority
Chair, Egyptian Competition Authority
President, Comisión Nacional de los Mercados y la Competencia
Superintendent, Colombian Competition Authority
President, Hellenic Competition Commission
Chair, Australia Competition & Consumer Commission
Chairwoman, Mexican Federal Economic Competition Commission
President, Belgian Competition Authority
Alexandre CORDEIRO MACEDO
President, Brazil’s Administrative Council for Economic Defense
COVID-19: Keeping the Lights On
In all of these talks, the elephant in the room, of course, is the global COVID-19 pandemic. Thankfully, NCAs have approached the crisis with admirable pragmatism, both on an operational and a substantive level. What is remarkable from the NCA heads’ descriptions is the consistency of their authorities’ approaches, the degree of coordination and cooperation between them, and the usefulness of international mechanisms to facilitate this united response.
On the operational front, NCAs had to act quickly to ensure the continuity of their functions. Unlike other public authorities, NCAs cannot simply shut down temporarily. Despite the pandemic, the economy lumbers on, albeit in vastly changed circumstances. NCAs had no choice but to adopt a war footing to keep the lights on during this unprecedented crisis.
“The first lesson I would say is stick always to the law. You may interpret the law more or less broadly, of course, but the institution can only do what the law allows it to do. So if you think that the institution should be granted more powers [to do more]; then the law is insufficient or outdated.”
Ricardo Riesco, National Economic Prosecutor of Chile’s Competition Authority
In a sense, the pandemic was an ill wind in terms of building out authorities’ IT infrastructures. Necessity is the mother of invention: Many developments that might otherwise have waited long to be implemented were put in place in short order. Remote working had to be scaled up dramatically. Authorities scrambled to develop skeleton services. Technical support services adapted to the reality of mass remote working.
The result? Key functions remained available to businesses (notably merging parties), and, most importantly, to the public at large. The institutions remained functional.
“As a competition agency, you can never shut down as other authorities, maybe because we have to do our merger work. It’s coming in. We have to do work on it. So what we have learned in first place was, we can work from home. We can work digitally.”
Andreas Mundt, Head of the German Bundeskartellamt.
To achieve this, authorities undertook unprecedented efforts in record time to deploy the necessary teleworking procedures for their staff. The pandemic provided a useful proof of concept: A hybrid remote/local working model is very possible and practicable. Most NCAs do not report a significant dip in their output over this period, despite the circumstances.
“[T]he achievement for us is basically making markets work. So making sure that markets are working properly, competitively, this is the main aim.”
Mahmoud Momtaz, Chair of the Egyptian Competition Authority
In addition, it is reassuring to learn of the degree of cooperation and collaboration between national authorities. On both a regional and worldwide level, NCAs shared their experiences in this trying time, and learned from each others’ successes and challenges. The insights discussed in these talks would be of value in the context of any future crisis response.
“[T]hat work in the OECD, the ICN, learning from fellow colleagues, … signing as many MOUs as we can with other authorities … is the … best approach in the international arena.”
Andrés Barreto, Superintendent of the Colombian Competition Authority
In short, these talks provide fascinating insight into the development and evolution of institutions in the midst of an unforeseen scenario. Crucially, this insight comes from the perspective of those who in fact instigated and implemented these measures.
COVID-19: Keeping the Lights On
On the substantive front, one of the key issues NCAs have had to face during the pandemic was how to deal with potential supply shortages across various sectors. This obviously includes essential goods such as medications, PPE and other emergency materials. But it also concerns retail distribution, including the supply of consumer goods, such as food, beverages, and personal care products, to name but a few.
NCAs had to nimbly balance security of supply against their core function of maintaining effective competition. In a display of flexibility, NCAs even in some cases allowed cooperation between financial institutions to ensure that firms at risk received credit. This involved permitting certain degrees of cooperation between competitors, to a degree that arguably may not have been justifiable under normal circumstances.
Of course, across all jurisdictions, a key consideration was to ringfence such cooperation to what was strictly necessary to address supply conditions, as justified by the unusual situation at hand. Again, reassuringly, NCAs made best efforts to coordinate their efforts and exchange best practices to ensure this. Encouragingly, NCAs sought to do so both through bilateral contacts and through international fora such as the ECN, the ICN and the OECD.
Às Alexandre Cordeiro Macedo, the President of Brazil’s CADE, recounts, his authority relied on international recommendations from the OECD and the ICN to decide whether or not to authorize collaboration among a group of rival companies as a measure to minimize the effects of the crisis in retail consumer goods. This is a prime example of the international competition community leveraging its strengths to reach optimal solutions.
“[T]o minimize the effects of the crisis in … consumer goods, such as beverages, food, and personal care products … [we] relied on international recommendations from the OECD and the ICN.”
Alexandre Cordeiro Macedo, President of Brazil’s Administrative Council for Economic Defense (CADE)
We are still in the throes of the pandemic, so it is too early to assess the overall success of these efforts. Even so, early signs are encouraging, and it seems that these links between NCAs, if anything, have been enhanced by the response to the crisis.
The talks reproduced here see enforcers relate their experiences of dealing with these issues in real time. Specifically, these materials describe, from a first-hand perspective, the dilemmas faced, the solutions adopted, and the instruments and policies ultimately used. As such, these talks provide a useful insight into the development of policy and practice in a rapidly-changing and unprecedented environment. These insights may prove useful should an individual authority (or the world) have to deal with such upheaval again.
Digital Markets: The Challenge of the Century
The pandemic has revealed (as if further proof were needed) how reliant the world has become on digital technologies. Even before the pandemic, the hot issue for enforcers and legislators was the regulation of digital platforms in their various facets. COVID-19 could well prove to be the catalyst for further and faster reform at the national level.
“Clearly the focus on ex-ante regulation in relation to the digital platforms, big tech is fundamental. That’s going to be a huge focus of ours”
Rod Sims, Chair of the ACCC
As reflected in these talks, NCA heads without exception have their eyes on digital markets. But not only digital markets in the narrow sense: Digitization is a trend that suffuses every market, and defines how businesses and consumers interact with every aspect of the economy. This ranges from finance to electric vehicle charging, from real estate to childcare, from taxi hailing to grocery delivery.
It is therefore interesting that many NCA heads ask what “digital markets” even are. All markets are becoming increasingly digital, and this shows no signs of abating. That said, as Jacques Steenbergen of the Belgian Competition Authority notes, “[t]he problems are diverse, are not limited to the digital giants, but the digital giants manifestly present a specific challenge.”
“[A]lmost everything is going digital. So like some of my colleagues, I’m not very comfortable with focusing only on the digital sector. What is the digital sector? Is it a sector that provides digital services? That is already, or has become a very large sector with the very large players everybody always talks about, but we should not forget that there are also others, and this is not new.”
Jacques Steenbergen, President of the Belgian Competition Authority
NCAs are grappling with this broader trend in terms of how they gather evidence, how they analyse parameters of competition, and in how core competition law concepts should be interpreted and applied. As Johnathan Scott of the UK CMA surmises, there is a need for a “tailored regime, which will reflect where market power actually exists and is fact-based rather than theory-based.” Finding this careful balance between theory and reality will be the combined challenge of legislatures and enforcement agencies, as this new body of regulation develops.
“I like to look at technology, and in particular digital, as a feature of many sectors. It’s a feature that has become present in most sectors, if not all, and it has changed business models along with people’s way of living, as I mentioned, including and even more so during the pandemic.”
Margarida Matos Rosa, Portuguese ADC President
Moreover, it seems to be common ground that ex ante platform regulation is coming. NCAs in most cases have been intimately involved in articulating this regulation, and will likely have a key role in its enforcement.
The extent of this continued participation, and how the new rules will impact competition enforcement remains to be seen. But a universal theme that has been voiced by participants in this series of talks is that any ex ante regulation and competition rules must be implemented in a consistent and coherent manner.
Conclusion: Looking to the Future
As to the future, NCA heads identified some obvious core trends that apply to us all: The rise of tech, the importance of balancing sustainability with economic competition, and the dangers of growing economic concentration. This set of trends seems almost obvious, but the key challenge over coming years will be how to strike the correct balance between restraint and enforcement against this multivariate background.
“[E]very year we produce our annual plan and we do try [to] use that as an opportunity to stand back, raise our heads above the parapet, and actually think about what we think are the emerging issues.”
Jonathan Scott, Chair of the UK CMA
A recurrent theme is the impression that in years to come, enforcement activity is likely to, if anything, increase. The tech sector will be one target of enforcement, but finance, healthcare, pharmaceuticals, and labor markets also consistently rear their heads. That said, each country has specific enforcement priorities, depending on the sectors of concern in its particular economy. NCA heads articulate on likely trends in their respective jurisdictions in this set of talks, and it would be premature to draw out general trends, beyond the obvious.
“[T]his is the result also of the synergies of being a regulator. and also an antitrust authority because we can both from a regulatory point of view, pay attention to distortions in the market in regulated sectors but also try to combat that from a competition point of view.”
Cani Fernández, President of the Spanish Competition Authority
Nonetheless, whatever the case may be in individual jurisdictions, the broad trend is that governments are investing in staffing authorities, in the development of AI, and in exploring other technologies to enhance antitrust enforcement capacity. Governments are emphasizing competition as a policy focus in public. Competition is back on the agenda, and NCA heads are aware of the political stakes at issue.
“[I]t’s quite important to think more carefully about the way technology could be integrated in our proceedings, and in particular AI. This is really the most important challenge we will have, and that’s why we have been very supportive and of the development of this new work, and new research on competition law and economics.”
Ioannis Lianos, President of the Hellenic Competition
This gels with another recurrent theme among NCA heads: their desire to foster an ethos of competition amongst the general public. It is apparent from these talks that NCAs — as a general rule — view it as part of their core mission to advocate to the public the virtues of competition as a civic good.
“[There are] three world issues … climate change, inequality and how big companies will modify the way we live, consume, [and] everything we do. And antitrust policy is right there in the middle. So it’s really interesting to be part of it.”
Alejandra Palacios Prieto, Chairwoman of the Mexican Federal Economic Competition Commission
Similarly, NCA heads question whether current legal standards (internationally and in their respective jurisdictions) may be miscalibrated. Specifically, certain NCA heads query whether the bar is set too high to prove certain types of abusive anticompetitive conduct. Might we see a recorrection over coming years, either via the practice of authorities, legislation, or the jurisprudence of national courts?
In conclusion, this set of talks provides a snapshot of current thinking among competition law enforcers at the national level. We hope that this collection of NCA heads’ voices provides a useful compendium of insight for anyone interested in competition policy.
Listen well. As Italo Calvino wrote, “it is not the voice that commands the story; it is the ear.”
To watch all the video recordings go HERE.
This synthesis was prepared by Andrew Leyden, CPI’s Editor, and it is based on the videos recorded and broadcasted on CPI TV.