OECD-GVH RCC Newsletter

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OECD-GVH RCC NewsletterIssue No. 6, January 2016ContentsForeword . 2RCC events between July – December 2015 . 3OECD Competition Committee Meetings, 26 – 28 October 2015 . 6OECD Global Forum on Competition, 29 – 30 October 2015 . 7RCC Programme 2016 . 9Nordic Competition Authorities and co-operation .11The Sofia Competition Forum – a response to the need for closer co-operationbetween competition authorities in the Balkan region.13The essential role of competition authorities in the economic recovery .17Experience is the teacher of all things Improving enforcement decisions throughex-post evaluation .23New instrument introduced into the Hungarian Competition Act: the warning .27Foreclosure effects of a parallel network of contracts The case of the Hungarianbeer market in the HoReCa sector.29FAS Russia authorised to regulate tariffs.32State Aid Register of the Republic of Moldova .34No6DISCLAIMER:The RCC is not responsible for the accuracy of information provided by the articles’ authors. Information provided in this publication is for 1information purposes only and does not constitute professional or legal advice.

ForewordDear Readers,In this edition of the Newsletter we try to raise your interest for a wider range of topics. It quiteimpressively shows many of the areas competition authorities are covering these days.What I would recommend as priority reading, however, is our new seminar programme for 2016. TheRCC team is looking forward to many interesting events next year. A new arrival on our agenda is atraining session that is dedicated to young authority staff in March. This directly reflects one of thesuggestions that were made during our meeting with the heads of authorities. Other seminars will bemore advanced, like the seminar on information exchange or the sector related event oncompetition rules and the financial sector. Please make sure that you save the date for the eventsthat are of interest to you. Invitations will be sent out in due course to each of the beneficiaryauthorities.One of our continued themes in the newsletter is to provide you with suggestions on how to explainwhy competition authorities play an important role and also how to evaluate your authorities’ work.Two articles by the OECD should provide you with inspiration. Another big topic that may be ofinterest for the RCC beneficiaries is international co-operation. Finland provides us with informationon the model of the Nordic Competition Authorities and Bulgaria introduces the regional initiative“Sofia Competition Forum”, of which many of you are members.Our other articles cover a broad range of topics: Moldova reports on the introduction of the state aidregister. Hungary had an amendment of its competition law and introduced special rules for thefining of small and medium sized companies. Russia has also seen legislative change. FAS Russia wasgiven the authority to perform tariff regulating functions, while at the same time actively pursuing anapproach for opening as many markets as possible to competition. Hungary describes its experiencewith a parallel network of contracts in the beer sector, a phenomenon that might be encountered inmany other countries as well.You will also find summaries of the OECD Competition Committee meetings and the Global Forum onCompetition in October 2015 with links to all the documents you might find interesting. Use them tobenefit from the work and experiences of peer competition authorities and from the work productsof the OECD.We are happy to receive your comments and contributions! Please contact Sabine Zigelski (OECD –sabine.zigelski@oecd.org) and Andrea Dalmay (RCC ‐ dalmay.andrea@gvh.hu).Sabine ZigelskiOECDNewsletter No 6Miklós JuhászPresident of the GVH2

RCC events between July – December 201522 – 24 SeptemberOutside Seminar in Georgia – Evidence in Cartel CasesThe availability and quality of evidence to be used in cartel cases is decisivefor the successful initiation and completion of a cartel investigation. In thisseminar we had a closer look at how direct and indirect evidence to be usedin cartel cases and at ways of obtaining it. Topics that were discussed wereleniency systems, screening instruments, dawn raids and interviews. Theseminar provided insights into best practices of experienced OECD countrieswith the use of these instruments (preparation, execution and assessment)and provided opportunities to apply the learnings in hypothetical caseexercises.20 – 22 OctoberUpdate in Competition EconomicsIn this seminar we presented economic methods that can be helpful forcompetition authorities in the assessment of mergers and of allegedlyanticompetitive conduct. The seminar covered concepts like the SSNIP-test,diversion ratios and UPP indices in merger cases. In abuse of dominancecases finding the correct counterfactual and carrying out an “as efficientcompetitor” test will often be required. With the help of experiencedpractitioners from OECD countries we made these economic methodsaccessible to the participants and also talked about data, time and resourcerequirements, minimum and best practice standards for economic evidenceNewsletter No 63

and about the participants’ experiences in this field. The “translation” ofeconomic results for lawyers and judges was an important topic as well.Practical exercises and examples enabled the participants to apply the theoryand to develop a better understanding.19 – 21 NovemberNewsletter No 6Seminar in European Competition Law for National JudgesThe advanced level seminar covered recent developments in EU competitionlaw. The most important developments in the area of Arts. 101/102 TFEUwere introduced and discussed with a special focus on how these cases affectprivate claims before national judges in terms of the scope of legal rules,arguments parties are likely to develop, and economic and other evidencethat would be required to support claims.4

8-10 DecemberNewsletter No 6Competition Topics in Telecommunication and Electronic CommunicationMarketsThis sector focused event gave the participants an opportunity to gaingreater insights into the sector of telecommunication and electroniccommunication and to exchange their experiences. Topics that werediscussed were the role of competition in the sector and the interplaybetween competition and regulation. We also discussed market definitionand antitrust topics pertinent to the sector like bundling and margin squeeze.In addition mergers between Mobile Network Operators (MNOs) and the roleplayed by Mobile Virtual Network Operators (MVNOs) were covered.Specialists from OECD competition authorities presented on these topics anddiscussed case studies from the participating countries.5

OECD Competition Committee Meetings, 26 – 28 October2015Hearing on Disruptive Innovationin the Financial Sector 1In this Hearing, Working Party No. 2 discussedinnovation in the financial sector, a sector thathas experienced many innovations in recentyears. The hearing assessed the impact ofselected major innovations on consumers,discussed how existing regulation should bechanged in order to allow the introduction ofnew business models and technologies, andexamined how different jurisdictions haveaddressed these topics in recent years. Thediscussion focused on peer-to-peer lending;crowd-funding equity; digital currencies;payment mechanisms (e.g. mobile phone,wallets) including payment from oneindividual to another (thus including peer-topeer currency exchange).Roundtable on Cartels involvingIntermediate Goods 2The Roundtable in Working Party No. 3discussed “Cartels Involving IntermediateGoods”, that is involving goods used as inputsin the production of manufactured goods forfinal consumers. These can be found in allcountries and across a broad range of sectors.The Roundtable explored certain differencesbetween cartels involving intermediate goodsand cartels involving final consumer goods.The discussion focused in particular on thelegal and jurisdictional requirements forpossible enforcement action in differentcountries, the factors to consider in decidingwhether to bring an enforcement action, g-intermediate-goods.htmNewsletter No 6how any subsequent sanctions would bedetermined, including whether to considersanctions imposed by other jurisdictions indetermining the appropriate sanction.Hearing on Across Platform ParityAgreements 3The Competition Committee held a Hearing onAcross Platform Parity Agreements (APPAs).These are agreements entered into bysuppliers and retailers that specify a relativerelationship between prices of competingproducts, or between prices charged bycompeting retailers. These agreements are aspecial type of price agreements. These priceagreements include a wide variety ofcontractual clauses whereby a seller’s price isrelated/tied to another price – including theprice set by other sellers for the same orsimilar competing product(s); or the pricesoffered by a seller to different buyers inrespect of the same product. APPAs arecharacterised by two elements: (i) a verticalelement, because they involve firms atdifferent levels in the value chain, and (ii) ahorizontal element, because they link prices ofcompeting goods and/or of competingretailers. The Hearing discussed a number ofissues, including how to i) identify the keycompetition concerns that these agreementscan raise, as well as the benefits theseagreements may bring to consumers; (ii)understand to what extent these concernsactually materialise, and these benefitseffectively accrue to consumers; as well as to(iii) ascertain how these anti- and procompetitive effects can vary depending on thespecificities of the mpetition-cross-platform-parity.htm6

OECD Global Forum on Competition, 29 – 30 October 2015Does Competition Kill or CreateJobs? A discussion on the links anddrivers between competition andemployment 4In this Session of the Global Forum onCompetition pro-competitive policies that maysupport the creation of jobs were discussed,as well as whether competition may destroyjobs. In many economies, emerging as well asdeveloped, it is often the case that openingeconomic sectors hitherto protected fromcompetition is perceived as threateningexisting jobs. In times of economic downturn,a typical policy response may beretrenchment and the erection of regulatoryor political barriers to competition in an effortto preserve jobs. This may be the case inmergerreviews,whereemploymentpreservation remedies may be imposed by thecompetition regulator. However, in the longterm such barriers may prevent the creationof new jobs. This Roundtable explored thenature of this relationship.Peer review of Kazakhstan’sCompetition Law and Policy mpetition Law EnforcementThe term ‘disruptive innovation’ is taken fromthe business literature referring to situationsin which a new competitor creates radicalchange within an existing industry bylaunching a new product or service, often withsome distinctly novel features or an entirelydifferent business model. This s raise for competition lawenforcement, for instance when consideringmergers between disruptive innovators andincumbents, or exclusionary conduct byincumbents against innovators. The focus wasmainly on issues that competition lawenforcers face when engaged in mergercontrol and also explored issues related toexclusionary conduct.Serial offenders: Why someindustries seem prone to endemiccollusion 7The GFC organised a peer review of the statusof competition law and policy in Kazakhstanand discussed recommendations on how toimprove the competition enforcementpractice as well as the structure andeffectiveness of the competition institutions inthe country.This was a full-day roundtable session thatexamined some sectors where endemiccollusion is found and the extent to whichrecidivism varies across sectors. The sectorsdiscussed by participants included: chemicals;construction services, including publictenders; cement and concrete; and foodproducts. Economic theory has developedwell-established guidelines on the factors thatare considered conducive to collusion andcould therefore help explain etitionpolicyframeworks.htm, to bepublished shortlyNewsletter No tion-industries-endemic-collusion.htm7

collusion. These factors include marketconcentration, high entry barriers, a high ratioof fixed costs to variable costs, markettransparency and frequent interaction amongcompetitors that facilitates informationsharing.competition assessment and in spottingpotential barriers to competition whendrafting or revising laws. Both volumes will bereleased in an updated version later this year.They are both available in Russian and in manyother languages.Repeated collusion by the same companiescould also have other explanations, such asthe interplay between firm-specific factorsand sector-specific factors. For instance therecould be effects that build upon each other:once cartels do form (perhaps because ofsectoral characteristics), collusion becomesmore accepted in the sector, so that cartelsbecome more likely to form again, even afterantitrust action.The new Toolkit Volume 3, the OperationalManual for Competition Assessment, containsvery practical guidance and a step-by-stepguide for performing competition assessment.For step 1, guidance on how to select sectorsfor examination, map legislation and identifykey policies is given. Step 2 describes thescreening process in more detail. In step 3 theidentified policies in need of closerexamination have to be fully understood,including the market conditions and theregulatory environment and changes of themarket conditions over time. Different optionsfor developing alternative options, likeinternational comparisons or better use ofeconomic incentives are described. This willenable step 4, selecting the best option. Herevarious qualitative and quantitative methodsare introduced, including tables with valueestimates for mean price impacts for movingtowards a more pro-competitive regulation.This leads to step 5, the recommendation. Theoptionshavetoberankedandrecommendations have to be presented topolicy makers and in the end animplementation process should follow. Anevaluation of the policy change will help tofurther improve the selection and decisionmaking process, step 6. All along, volume 3provides numerous examples for the practicalimplementation process. In short, volume 3summarises all the learning on processes ofthe already conducted OECD projects and ofmany other projects and can thus beextremely helpful for anyone conductingsimilar analyses.New OECD Work Product – ToolkitVol. 3 8The OECD Competition Assessment Toolkit hasbeen introduced in previous Newsletters.Toolkit Volume 1, the CompetitionAssessment Principles, gives examples of thebenefits of competition, provides anintroduction to the Competition Checklist anddetails ways how governments can assess thecompetitive effects of their policies. It is of arather general nature and explains the needfor competition assessment to policy makersand non-competition experts. It can providecompetition authorities advocating theirefforts in competition assessment withexplanatory materials and a narrative. Thisvolume is supplemented by a companionvolume 2, Competition Assessment Guidance,which provides detailed technical guidance onkey issues to consider when performingcompetition assessment, as well as providingseveral sample competition assessments. Itwillhelpregulatorstoincorporate8All three volumes can be found t-toolkit.htmNewsletter No 6It is currently only available in English, moretranslations are to follow.8

RCC Programme 20168 – 11 MarchIntroductory Level Seminar - Basic Concepts and Procedures in CompetitionLaw for Young Authority StaffThis beginner level seminar will give young authority staff the chance to getmore familiar with basic competition law concepts. We will highlight cartels,mergers and abuse of dominance and will address basic legal and economictheories as well as procedural requirements and the relevant case law. Theinternational component of competition law enforcement will also bepresented. The participants will have a chance to apply and deepen theirknowledge in practical exercises and to become more familiar with new areasof competition law. Experienced practitioners from OECD countries will sharetheir knowledge and engage in a lively exchange with the participants.14 – 15 AprilGVH Staff TrainingDay 1 - Review 2015 and Selected Competition ProblemsAfter a review of the developments in EU competition law in 2015 we willhave a closer look at selected competition law topics. Experiencedpractitioners from competition authorities and from private practice willdiscuss the topics with the GVH staff.Day 2 – Trainings for Special Groups of StaffIn separate sessions we will provide dedicated trainings and lectures for themerger section, the antitrust section, the legal section, the consumerprotection section and the Competition Council of the GVH.18 – 20 MayAdvanced Level Seminar – Information Exchange: Efficiency Enhancing orCartel in Disguise?This seminar will highlight different forms of information exchange: Formaland informal exchanges, direct and indirect exchanges and the unilateraldisclosure of information and signalling. Information exchanges can beobserved in horizontal and vertical relationships and in differentorganisational settings. We will investigate which forms of informationexchange warrant closer scrutiny by competition authorities. Experts fromOECD member countries will present cases and engage in hypotheticalexercises with the participants. The recent EU case law will be presented anddiscussed.7 – 9 JuneRCC – FAS Seminar in Russia – Fighting Bid Rigging and CorruptionPublic procurement accounts on average for 13 % of GDP in OECD countries.It is particularly vulnerable to fraud and corruption. Fighting and preventingbidder’s cartels and corruption can generate huge welfare gains to societies.This seminar will introduce OECD instruments such as the Guidelines forFighting Bid-rigging in Public Procurement and the Recommendation onPublic Procurement. Competition authorities are well placed to play animportant role in fighting bid rigging and corruption – by making extensiveadvocacy efforts and taking vigorous enforcement action, in co-operationwith other relevant state actors. Together with international experts in thisdomain and with experts from FAS Russia we will exchange experiences andNewsletter No 69

foster a better understanding of mechanisms and symptoms of bid riggingand corruption and the instruments for fighting them.27 – 2

OECD-GVH RCC Newsletter Issue No. 6, January 2016 DISCLAIMER: The RCC is not responsible for the accuracy of information provided by the articles’ authors. Information provided in this publication is for information purposes only and does not constitute professional or legal advice.

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