Market studies are a flexible and holistic tool for competition authorities to address complex, evolving market issues that traditional enforcement may not adequately cover, offering a forward-looking approach to shaping competitive landscapes.
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Competition issues can result from several factors
and enforcement is not always the most suited tool to address these issues.
Therefore competition authorities need a diversified toolkit, particularly in the
face of a complex fast-changing economic environment. Market studies are a flexible
tool that allows competition authorities to examine broader competition issues in the market.
They usually conclude with recommendations for regulatory changes or calls for changes in firms'
behavior. In a few jurisdictions, market studies can also lead to the imposition of remedies.
Moreover they can enable more informed enforcement intervention and advocacy initiatives.
Most competition authorities around the world use market studies in some form in the world,
ranging from short informal assessment to lengthy formal processes,
involving multiple rounds of stakeholder input and empirical analysis.
Market studies are well suited to analyze emerging competition issues.
Emerging competition issues can be categorized according to their drivers.
It can be structural drivers, demand-side drivers or regulatory drivers.
Structural issues emerge for example, when there are light economies of scale and scope,
high barriers to entry, strong network effects, “winner-takes-most” dynamics,
all of which can lead to increased concentration in the market, therefore changing its structure.
Serious demand-side issues have arisen with the increased digitalization of markets.
One example is the increased use of "dark patterns".
They're also known as tricks using websites and apps
that make consumers do something that is not in their best interest, therefore causing harm.
Finally, regulatory competition issues can
materialize for instance when regulations do not keep pace with changes in the market
or it is the new policy initiative that changes the market dynamics itself.
Market studies analyze whether there are competition problems in a whole sector
instead of analyzing the conduct of individual firms in that market.
Therefore, these studies are holistic in nature
and can cover a broader set of issues than can be done in competition enforcement. In the case of
emerging competition issues authorities are unlikely to have had enforcement cases yet
or have detailed knowledge, hence the use of market studies may be a beneficial tool to
gain better understanding of the market in question.
Moreover competition enforcement tends to focus on the actual or
potential harm caused by historical or ongoing anti-competitive practices.
Market studies in contrast contribute by providing the flexibility to be forward-looking.
Finally, market studies provide an opportunity for an authority to reduce uncertainties
about how the authority will apply competition principles
for new or fast-changing business models and markets
or where there have been recent changes. This enables the authority to shape
early on the development of business practices in new or changing markets
in a way that is compatible with competition principles.
However market studies also have downsides.
First, recommended changes to legislation or regulation tend to be static in nature and
can take time to implement.
At a time of rapid technological change, they may quickly become obsolete.
In addition, in most jurisdictions, recommendations are not legally binding.
Second, due process guarantees are lower than in competition enforcement
and normally market studies do not undergo judicial review.
And of course market studies can be costly and time-consuming.
The OECD's Market Study Guide and the ICN's Good Practice Handbook
provide precious guidance on how to conduct effective market studies.
The first step is to select and prioritize sectors that require further investigation.
Competition authorities should focus their efforts on a few selected market studies
that have the potential to improve competition dynamics
and to increase the authority's wealth of knowledge.
The second step is rigorous scoping and planning.
Competition authorities should clearly identify the scope
and depth of their analysis and commit to a detailed timeline.
The third step is initial desk research to collect preliminary information on the product or service
on competitors, consumers and regulatory framework.
At this stage, many competition authorities officially launch the study.
Making the study public ensures transparency, simplifies the interaction with stakeholders
and allows unexpected sources of information to come forward. The fifth step- the selection
of the methodology and the ensuing data collection- is the core of the research.
The most used tools to data collection
are stakeholder interviews and requests for information.
Surveys can be a valuable alternative when consumers are too numerous or heterogeneous,
as this allows for the systematic use of interviews or targeted data requests.
Depending on the outcome of the data collection process, it might be worth gathering additional
information or involve external experts or liaise with sector regulators.
At this stage, the data should be ready for analysis.
The analytical methodology can entail identifying
the market structure and key characteristics, price analysis, price concentration analysis,
supply- and demand- focused analysis and a regulatory assessment.
The subsequent crucial step is the drafting of the final reports.
Summarizing the results of many months of research is challenging.
Yet, all that work will have an impact only as long as the competition authority can present it in a clear engaging and compelling way.
Then, the final step is ex-post evaluation.
Did the market study actually make a difference?
To answer this question,
competition authorities should monitor the implementation of their recommendations
and determine whether competition problems continue to persist.
Since market studies are complex and resource intensive,
learning from past experience gained by other competition authorities
can help improve their quality and effectiveness.
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