On June 27, 2011, the Competition Bureau issued
draft revisions to Canada's Merger Enforcement
Guidelines (MEGs). The MEGs, last revised in 2004,
set forth general direction on the Bureau's analytical approach
to merger review under Part VIII of the
Competition Act. On February 24, 2011,
the Commissioner announced that the Bureau would
undertake "moderate revisions" to the
MEGs. An important factor driving the current
revisions is generally understood to be the 2010 revisions to the
U.S. Horizontal Merger Guidelines (U.S.
Guidelines), although the Canadian revisions did not simply adopt
those made in the U.S. In addition, the Canadian MEGs address both
horizontal and vertical merger analysis and reflect more recent
thinking on our own unique efficiencies defence. The Bureau is
seeking public feedback on its draft revised MEGs by August 31,
2011, with a view to publishing them in final form in the fall of
2011. Substantively, the draft revised MEGs do not appear to indicate
dramatic shifts in Bureau merger enforcement policy or practice.
They do adopt a more nuanced approach to market definition,
however, and provide more detail regarding the Bureau's
approach to monopsony (buyer) power, minority interests and
interlocking directorates, the use of various economic tools in the
analysis of competition between firms with differentiated products
("upward pricing pressure" as such is not specifically
mentioned, but is very much there in spirit), a change in the
approach to assessing whether entry is likely to be
"timely", a more nuanced treatment of coordinated
effects, and an expanded analysis of anti-competitive effects in
non-horizontal mergers. The revisions are intended to address areas
where the 2004 MEGs no longer fully reflected Bureau practice and
current economic and legal thinking. The draft MEGs specify that merger review should be seen as an
iterative process, as opposed to a linear one. In particular,
market definition should be viewed as part of the overall analysis
in that it is a typical, but neither a mandatory nor necessarily a
preliminary step, in analysing the likely competitive effects of a
merger. A prominent change is that merger review does not have to
begin with defining the relevant product and geographic market.
Instead, merger review may take into consideration market
concentration in conjunction with other evidence of competitive
effects, with the ultimate goal of concluding whether the merger
creates or enhances market power. Any economic tool will be
considered so long as it is appropriate, and there will not be a
preference for any particular mode of analysis. The change in the role of market definition enhances the
flexibility of the Competition Bureau's approach. It appears to
be based in part on the 2010 revisions to the U.S. Guidelines. The
U.S. Guidelines provide the Federal Trade Commission with wide
scope in determining whether there are anti-competitive effects,
and there is less focus on strictly assessing market definition,
market shares and market concentration. The draft Canadian
revisions, similarly, make it clear that market definition is a
means and not an end, while emphasizing that, where feasible and
useful, markets will still be defined. Monopsony power refers to the power of a buyer or a group of
buyers to control and profitably depress the price of the product
or service from sellers, by reducing the quantity of inputs
purchased to a level that is below the competitive level for a
significant period of time. The draft MEGs now incorporate the more
detailed thinking on monopsony power previously available only in
Bureau submissions to the Organization for Economic Co-Operation
and Development (OECD). The conceptual basis for defining relevant upstream markets is
the hypothetical monopsonist test, although the Bureau will
consider both market definition-based and other evidence of
competitive effects in monopsony cases. Buying power is said to be
anti-competitive when the buyer has the ability to decrease the
price of the relevant product below competitive levels by virtue of
a reduction in the overall quantity of inputs purchased. If the
merged firm accounts for a significant portion of purchases of the
relevant product, and barriers to buying the input are high, the
Bureau will consider factors such as whether the merged firm has an
incentive to reduce its own output (and therefore its purchases),
whether long-run supply is likely to be reduced if prices are
squeezed lower, and whether upstream supply is already competitive
(i.e., countervailing selling power). By implication, the
anti-competitive concern ought not to be present when a purchaser
can negotiate lower prices that do not diminish the overall supply
of the inputs in question. The draft revised MEGs do not go that
far, however, and indeed point out that a price reduction obtained
from suppliers with perfectly inelastic supply curves (no ability
to reduce output in the face of lower prices) which results only in
a wealth transfer would still be considered to be
anti-competitive. The draft MEGs provide an extended explanation of minority
interests and interlocking directorates, again in accordance with
prior Bureau submissions to the OECD. The draft revised MEGs
reiterate that the Bureau will review minority interests and/or
interlocking directorships if they are either ancillary to a merger
transaction or if they provide the party in question with an
ability to materially influence the economic behaviour of the
business of a competitor (i.e., if they constitute a merger in and
of themselves). The MEGs note that the Bureau regularly reviews
acquisitions of minority interests above the prescribed
notification thresholds of a 20 percent acquisition in a public
company or a 35 percent acquisition in a private company. Although
interlocking directorships and minority interests below those
levels do not trigger any notification requirement in Canada, the
enhanced treatment in the MEGs reflects the Bureau's ongoing
and increased scrutiny of non-notifable transactions. Specifically, the draft MEGs provide expanded guidance on what
level of minority interest will lead to potential concerns
(generally speaking, absent other relationships such as a seat on
the board of directors, a shareholding of less than 10% will avoid
scrutiny). They also expand on factors that the Bureau considers
when determining whether a minority interest and/or interlocking
directorate present the requisite level of influence to potentially
affect the economic behaviour of either party. Most importantly,
the draft revisions make it clear that the Bureau will first
examine a minority interest or interlocking directorate as if it
were a full merger. If such a merger would not likely prevent or
lessen competition substantially, a detailed analysis of whether
the minority interest or interlocking directorate gives either
party the ability to influence the other's behaviour is not
generally required. Where a full merger would indeed raise such
concerns, however, the Bureau will then examine the specific nature
and impact of the minority shareholding and/or interlocking
directorate, including a detailed examination of all of the factors
surrounding the potential to influence either party's economic
behaviour (e.g. voting and veto rights; shareholders'
agreements; board composition, quorum and historical voting
patterns; access to confidential information, etc.). Consistent with the more flexible approach to market definition,
the draft revised MEGs note that the Bureau may consider market
definition and competitive effects concurrently, in a dynamic and
iterative analytical process, although the traditional approach is
also likely to be employed where feasible and useful. Consistent with past practice, where it is clear that the level
of effective competition that is likely to remain in the relevant
market is not likely to be reduced as a result of the merger, this
alone will generally justify a conclusion not to challenge the
merger. The discussion of the analysis of unilateral effects in
differentiated product industries has been expanded. Where
firms' products are close substitutes for one another, as
measured by diversion ratios, the Bureau will examine whether the
merged entity will have an incentive to raise prices post-merger,
by examining for example the number of buyers who would consider
them to be close substitutes, whether either firm has been a
vigorous and effective competitor, whether buyers are price
sensitive, and other factors such as the likely response of rival
firms and buyers. This approach is generally understood to refer to
economic tools such as the "upward pricing pressure test"
articulated by the economists Joseph Farrell and Carl Shapiro in
2008 and espoused in the 2010 U.S. Guidelines – although
that work is not explicitly mentioned in the proposed Canadian
revisions. The Bureau's analysis of coordinated effects is also
clarified; it entails determining how the merger is likely to
change the competitive dynamic in the market such that coordination
is substantially more likely or effective as a result of the
merger. The discussion of various factors that may facilitate
coordination is enhanced from the prior MEGs, and clarify that
coordinated effects may be present with or without explicit
agreement among firms, and even if only a portion of the firms in
the market are involved in the coordination. The draft revisions have removed the 2-year time frame for
potential entry into the market when assessing whether such entry
will deter the merged entity from exercising market power.
Consistent with the treatment of a substantial prevention of
competition, entry must be likely, timely and sufficient to
constrain a material price increase in the relevant market. In the
prior MEGs, a rule of thumb for timely entry was two years,
assuming that in many if not most businesses, the prospect of
effective competitive entry within two years would be sufficient to
deter a firm with market power from exercising that power. The
draft revised MEGs now focus on whether any sufficient new entry
would occur rapidly enough to prevent the material price increase
or to counteract the effects of any price increase, without
reference to any specific time period. The draft revised MEGs provide enhanced direction on how the
Bureau will assess vertical issues, with a specific focus on
vertical foreclosure. Specifically, if by virtue of the acquisition
of a supplier or customer (a "vertical" merger), the
merged firm is able to limit or eliminate rival firms' access
to inputs or markets, thereby reducing or eliminating rival
firms' ability or incentive to compete, the merger may be
anti-competitive. The draft revised MEGs provide detailed guidance
on how the Bureau will assess the likely anti-competitive effect of
a vertical foreclosure. Up until this point, the Bureau has not
challenged a merger based solely on vertical foreclosure concerns.
However, with the recent amendment to the MEGs, it appears to be
expanding the scope for potential challenges based on vertical
foreclosure alone. The draft MEGs provide clarification on the efficiencies defense
located in s. 92 and s. 96 of the Act. This addition effectively
incorporates the previously released
Efficiencies Bulletinfrom 2009 into the
MEGs. Specifically, it expands on the Bureau's considerations
in evaluating efficiency claims and the parties' burdens in
proving such a claim. As a standard guideline, the Bureau does not
have to resort to the Tribunal for adjudication of an issue if the
gains to be provided by the merger outweigh the anti-competitive
effects. That said, in accordance with the guidance from the
Federal Court in the
Superior Propane case, the Bureau must
assess anti-competitive effects in the light of all of the objects
mentioned in section 1.1 of the Act, including not only efficiency,
but the impact on the ability of small and medium-sized businesses
to compete, and the ability of consumers to benefit from
competitive prices and product choices. In practice, proving that
efficiencies will outweigh anti-competitive effects will continue
to be a relatively arduous task. That being said, the proposed
revisions to the MEGs clarify that efficiencies are also relevant
to the analysis of likely competitive effects and, as such, merging
parties should not feel that calling attention to likely
efficiencies somehow amounts to an admission of likely
anti-competitive effects. Although the proposed revisions to the MEGs do not indicate
fundamental changes in approach, they do better reflect the more
nuanced thinking and greater range of analytical tools available to
the Bureau since the MEGs were last revised in 2004. In keeping
with the Bureau's recent case history, they may also reflect a
more activist approach to merger review. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Clarified Role of Market Definition in Merger Review
Enhanced Treatment of Monopsony Power
Enhanced Treatment of Minority Interests and Interlocking
Directorates
Unilateral Effects and Co-ordinated Effects in Horizontal
Mergers
Entry: No specific time-period
Guidance on Vertical Foreclosure: "Non-Horizontal
Mergers"
Expanded Treatment of Efficiencies
Conclusion
ARTICLE
8 July 2011
Draft Revisions To Canadian Megs Released For Comment
On June 27, 2011, the Competition Bureau issued draft revisions to Canada's Merger Enforcement Guidelines (MEGs). The MEGs, last revised in 2004, set forth general direction on the Bureau's analytical approach to merger review under Part VIII of the Competition Act.