prosecuting cartels in terms of the competition act (1998) presentation to the parliamentary...
TRANSCRIPT
Prosecuting cartels
in terms of the Competition Act (1998)
Presentation to the Parliamentary Portfolio Committee on
Trade and Industry
29 February 2008 Shan Ramburuth: Competition Commissioner
Tel: 012 394 3332E-mail: [email protected]
Format of presentation• Introduction and background
• Strategic planning
• Prioritisation
• Cartel cases
• Infrastructure project
• Going Forward
• Q & A’s
The Competition AuthoritiesThe competition authorities
E XTERNAL
PARTIES
Competition Commission
Competition Tribunal
Competition Appeal Court
Appeal of Tribunal decisions
Referral of complaints & large mergers
Exemption applications, complaints and merger notifications
Appeal of Tribunal decisions
Appeal of exemptions, intermediate mergers or non-referral decisions, defence of referral decisions
Commission’s mandate
• Prosecuting anti-competitive business practices
• Merger control – approving large and intermediate mergers
• Advocating pro-competitive practices and policies
Anti-competitive practices
Horizontal restrictive practices Price fixing Division of markets Collusive tendering
Vertical restrictive practices Exclusive agreements, resale price
maintenance
Abuse of dominance Excessive pricing, exclusionary acts
and price discrimination
Priorities: 2000 to 2005
• Setting up the institution
• Developing expertise
• Clarifying the law
• Focus on merger control
Demand for change
• Demonstrable impact: “concentration persists”
• Access to the economy: “barriers to entry”
• Benefits to consumers: “prices must fall”
• Prioritising for effectiveness under resource constraints
External environment• OECD Peer Review - 2002
• Presidency 10 year review - 2004
• AsgiSA - 2006
• National Industrial Policy Framework - 2007
• State of the Nation speeches -2006/2007
• Recognition of the role of competition policy in regulation
Internal environment
• Consolidating experience
• Retain staff and skills
• Knowledge management
• Focusing on the important issues
• Creating organisational efficiencies
• Step up enforcement activities
• Prioritise cases
• Re-organise structures and resource allocation for effectiveness
Strategic planning: Enforcement
Basis for prioritisation
• Commission’s experience
• Government policy
• Review of other jurisdictions
• Setting criteria for selection
Criteria
• Impact on poor consumers
• Costs of intermediate goods into labour absorbing manufacturing
• Impact of cost of doing business
Priority sectors: 2007 to 2010• Agro-processing, specifically food
processing and forestry
• Intermediate industrial products: chemicals, steel
• Infrastructure and construction, including bid-rigging
• Financial sector, specifically banking
Enforcement powers • Investigate and prosecute
• Summons, search and seizure
• Consent orders
• Recommend fines, behavioural and structural remedies
• Corporate leniency policy
Penalties received
Source: Commission Finance Department
Corporate leniency policy
• Indemnity from prosecution for providing information of a cartel
• “First through the door”
• Cooperate fully with and assist Commission
• CLP has played a key role in detecting major cartels currently being prosecuted
• Currently being reviewed
…on both a moral and practical level,
there is not a great deal of difference
between price fixing and theft…
(Whish, 2001)
Cartels(1)
Operates in secret
An agreement not to compete
Effect is to increase price and/or
reduce output. International studies find a median price
mark-up from cartels of
+/- 15%
Cartels (2)
Purpose is to maximise profits
Occurs through price fixing, market allocation and collusive tendering
Busting cartels means prices to consumers will be lower, over time, than under collusion
Cartels (3)
Premier Foods (Blue Ribbon), Tiger Brands (Albany) and Pioneer Foods (Sasko) agreed, in the Western Cape: to uniformly increase price of
bread to customers; to fix their discounts to
distributors; not to poach distributors
The bread cartel(1)
Premier confessed and was granted indemnity
Premier gave information of agreements
in the WC outside the WC In the national milling industry
Commission completed and referred its WC investigation on 14 February 2007
The bread cartel(2)
Tiger settled on baking and milling and paid a penalty of 5.7% of national bread turnover – R98 million
Western Cape bread cartel against Pioneer referred, trial date to be set
National bread cartel against Pioneer and Foodcorp to be referred shortly
National milling cartel against 11 respondents currently being investigated
The bread cartel(3)
Consumer price of bread, flour, Consumer price of bread, flour, and wheat price (trade) per and wheat price (trade) per
700g loaf700g loaf
Clover, Parmalat Ladismith Cheese, Woodlands Dairy, Lancewood, Nestle and Milkwood Dairy
Referred to Tribunal on 7 December 2006, hearing set for September 2008
The milk cartel(1)
Investigation found that firms:
fixed prices indirectly by co-ordinating the removal of surplus milk from the market
allocated geographic areas in which they would not compete
exchanged sensitive information on procurement prices of raw milk
The milk cartel(2)
Adcock Ingram Critical Care, Fresenius Kabi SA, Dismed and Thusanong agreed to:
tender collusively for Contract RT299 – state tender for intravenous solutions; and
divide the private hospital market amongst each other
The pharmaceutical cartel
Fresenius confessed, provided information and was granted indemnity
Commission completed and referred its investigation on 11 February 2008
The pharmaceutical cartel
Collusion in construction(1)Collusion in construction(1)
SA committed to major infrastructure investment
Wide concern about high prices in building materials – cement, bricks, aggregates, steel
Collusion in construction(2)Collusion in construction(2)
International experience of bid
rigging in construction
Commission scoped area’s of concern
Initiate investigations where competition concerns occur
Leniency applications received
Price trends in construction are substantially above inflation
Future issues
Strengthening the competition authorities
Corporate governance and corporate accountability
Appropriate disincentives
Compensating the losers