Two students will be selected to join these projects. Please indicate on the application form which research project you would like to apply to.
Internal supervisor: Dr Jonathan Cave
External supervisor: A member from CMA
Ex post assessment of mergers blocked due concerns about dynamic competition
In some recent cases CMA has blocked mergers on the basis of concerns about dynamic competition, in particular ‘reverse killer acquisitions’ where the concern is that the acquisition results in the acquirer not developing its own product to compete with the acquired firm (see for example “How Tech Rolls”: Potential Competition and “Reverse” Killer Acquisitions (competitionpolicyinternational.com)). It would be helpful to understand what has happened since those decisions, in particular whether the competition that CMA had expected to emerge had indeed done so.
Possible cases include Sabre/FareLogix (Sabre / Farelogix merger inquiry - GOV.UK (www.gov.uk)) and Illumina/PacBio (Illumina, Inc. / Pacific Biosciences of California, Inc. merger inquiry - GOV.UK (www.gov.uk)). In Sabre, one concern was that absent the merger Sabre might have developed its own technological solution akin to Farelogix. In Illumina, our provisional findings were that that parties were likely to compete more closely in the future and the rivalry between the parties was an important driver of R&D and innovation.
Similarly, it may also be interesting to explore what happened in cases where the merger was cleared but where there had been potential concerns that they were ‘killer acquisitions’ (where the aim was for the acquirer to prevent the growth of a rival that may become a strong competitor to it) – did the target’s innovation continue or did our theory of harm actually materialise despite us thinking it would not?
The dissertation could critically examine the merger decision, conduct desk based research to find out how the markets had developed post decision, and set out lessons from the analysis. CMA regularly publishes evaluations of its work which could provide guidance on possible approaches, see for example:
Ex-post assessment of merger control decisions involving vertically-related firms - GOV.UK (www.gov.uk)
Assessment of merger control decisions in digital markets - GOV.UK (www.gov.uk)
Analysis of the investigation of the proposed acquisition of PacBio by Illumina - GOV.UK (www.gov.uk)
Evaluation of entry and expansion in UK merger cases - GOV.UK (www.gov.uk))
Lessons for the UK Internal Market from other countries
Following the UK’s departure from the EU, powers have been returned to the UK Government and Devolved Governments which increase the possibility of regulatory differences, and consequently potential trade barriers, between the four UK nations. The UK has introduced statutory Market Access Principles to reduce the likelihood of regulatory differences proving a barrier to intra-UK trade. The Office for the Internal Market (OIM, part of the CMA) has been established to support the effective operation of the UK Internal Market. It assesses whether the Internal Market is operating effectively and provides expert and independent advice to UK government and devolved administrations (see About us – Office for the Internal Market – GOV.UK (www.gov.uk) for more information).
Other countries have federal or devolved systems of government and OIM is interested to better understand how these work, what arrangements are in place to manage regulatory divergence, and what lessons can be learned for the UKIM regime. Key topics that we would be interested in exploring are the types of regulatory difference that have emerged, the costs and challenges that these have raised for businesses, and the impact of those issues on the effective functioning of the country’s internal market. The OIM would be interested in how any such issues have been handled under the country’s internal market regime and any lessons this suggests for the OIM. Other topics that could be interesting to consider are the way in which different countries assess how effectively their internal market is functioning and the role (if any) that differences in the size of the economies of different states have on functioning of the internal market.
Countries that we understand may be particularly interesting to consider are Australia, Canada, Spain and Switzerland – see Annex B of the UK Internal Market white paper, UK internal market (HTML page) - GOV.UK (www.gov.uk) and Annex A of the OIM’s Overview of the Internal Market Appendices (publishing.service.gov.uk).
- In Australia, the Mutual Recognition Act 1992 (MRA) introduced the mutual recognition of goods and registered occupations between Australian States and Territories. Under the MRA, goods that can be sold lawfully in one State/Territory can also be sold in another without having to satisfy certain additional requirements. Similarly, registered occupations in one State/Territory may practise the equivalent occupation without having to obtain additional qualifications or experience. The scheme applies only to regulation relating to placing goods for sale and does not impact on the manner of sale requirements, including those relating to the use of goods. Heads of each state government meet through the Council of Australian governments and ultimately have responsibility for the management of the MRA, with the monitoring of the mutual recognition systems being undertaken by the Cross Jurisdictional Review Forum (CJRF). The reviewing of the MRA is undertaken by the external Australian Productivity Commission (APC) – see the last report published in 2015 Research Report - Mutual Recognition Schemes (pc.gov.au). The APC’s findings, when agreed and deemed necessary, are implemented by the CJRF.
- The Canadian Federation is highly decentralised. Their constitution states that goods made in one province must be admitted freely into others; local taxes cannot impede trade; and persons must be free to live and work in any province. The federal government cannot force provinces to harmonise fiscal or regulatory policies to improve the internal market. Instead they have a voluntary approach modelled on international trade, using intergovernmental agreements. The Canada Free Trade Agreement (see Home - Canadian Free Trade Agreement | Accord de libre-échange canadien (cfta-alec.ca)) promotes free trade, investment and professional regulation, and each province can specify a list of exemptions to this. Governments, individuals, and businesses can challenge policies of governments as violations of the agreement and these are resolved using the dispute resolution processes of either a negotiated settlement or by quasi-judicial tribunals.
- Spain introduced its Law on the Guarantee of Market Unity in 2013. This set out legal principles to reduce market fragmentation and prevent the creation of trade barriers between regions. The legal principles cover; Non-Discrimination, Better Regulation, national unique validation, and administrative cooperation. The legal principles are applied to all autonomous regions and the central government within Spain. Spain created the National Markets and Competition Commission (CNMC) alongside the law in 2013. The CNMC has the power to challenge laws it considers to be in breach of the 4 principles. Businesses and consumers also use the CNMC as the main point of contact when they wish to challenge a law they believe breaches any of the 4 principles. Such challenges are taken to the courts to be resolved if regions have not been able to find an out of court solution - most of the cases which have been raised via the CNMC have ended up in court. See Unidad de Mercado | CNMC and market-unity-guarantee-act-20-2013-ten-key-reforms.pdf (ga-p.com)
- Under the Swiss Internal Market Act (see Internal Market Act (admin.ch)) the cantons have primacy in law unless competence is expressly given to the federal state for a particular issue. The law prescribes free movement for professionals and that goods produced in one canton can be freely marketed in another. A canton may be able to justify restrictions if they also apply to local suppliers, are justified by a legitimate objective, and are proportionate. There is no pressure for cantons to harmonise. The Swiss Competition Commission (see Competition Commission (admin.ch)) has an internal market role which includes providing informal advice and non-binding opinions; undertaking its own investigations; and supporting the right of appeal by complainants to the Court.