The Canadian Competition Bureau (the Bureau) issued its revised merger enforcement guidelines (MEGs)1 in September 2004. In the first update since their original publication in March 1991, the MEGs exhibit greater convergence with US merger enforcement policy, while retaining some distinctly Canadian policy choices reflective of the provisions of the Canadian Competition Act (the Act). The MEGs are also largely consistent with the new merger control guidelines of the European Commission.
The first part of this chapter will briefly outline the MEGs. The second part will discuss some of the similarities and differences between the Canadian merger enforcement guidelines and those of the United States and Europe.
Overview Of The MEGs
Anti-competitive threshold
The Competition Tribunal may issue an order when it finds that a merger has or is likely to prevent or lessen competition substantially. The MEGs indicate that this test is satisfied where a merger is likely to create or enhance the ability of the merged firm, alone or in concert with other firms, to exercise market power. Market power by a seller is defined as the ability of a single firm or group of firms to profitably maintain prices2 above the competitive level for a significant period of time.3
According to the MEGs, competition will be lessened or prevented substantially if the price of the relevant products is likely to be materially greater in a substantial part of the relevant market as a result of the merger. This condition means that material price increases could be less than the typical 5 per cent price increase used for market definition purposes. The MEGs indicate that if existing or new competitors will likely eliminate the ability to materially increase prices within two years of the exercise of market power, the substantiality element of the test will not be met.
The Bureau may examine a merger as a ‘prevent case’ when either the acquirer or the acquiree has entry or expansion plans that are eliminated because of the merger. Mergers that prevent expansion into new geographic markets, eliminate the introduction of new products,4 or prevent the pro-competitive effects of new capacity are examples cited in the MEGs that will warrant investigation.
Market definition
The first step in the analysis is to identify economic markets that could be the subject of the exercise of market power. As noted by the Competition Tribunal,5 relevant markets defined for antitrust purposes may not correspond to the way that industry participants have defined their markets for business purposes. Relevant markets have both product and geographic dimensions.
The MEGs use the hypothetical monopolist paradigm to define product and geographic markets. The idea is to identify the smallest group of products and the smallest geographical area in which a single seller (the hypothetical monopolist) would profitably impose a significant price increase for an extended period of time. The significant price increase used in the test is generally 5 per cent and the time period used is one year.
The MEGs indicate that relevant market definition focuses solely on responses from buyers to changes in relative prices. Responses from sellers are considered later in the analysis, either as firms identified as currently in the relevant market or as likely future entrants. This approach more accurately reflects the actual Bureau merger enforcement approach over the past decade than the original guidelines. While it has the potential to lead to a greater number of relevant markets being defined, a pragmatic approach will aggregate defined markets where it makes sense to do so because of commonality of buyers and sellers and data limitations.
The MEGs note that where sellers can identify and sell to buyers who are willing to pay different prices for the same products, and where such price differentials can be maintained because buyers will not resell or trade these products in sufficient quantities, relevant markets may be defined with respect to the classes of buyers or the particular location of targeted buyers.
The MEGs set out in detail the type of analysis and evidence that the Bureau would consider in defining relevant markets. Where detailed price and quantity data are available, it may be possible to estimate the own-price elasticity of demand, which directly measures the change in quantity demanded by buyers in response to an increase in price.6 More commonly, this information is unavailable and the Bureau will be relying on indirect evidence of substitutability from market participants in response to a 5 per cent price increase. The views, strategies and behaviour of buyers in the past will be considered, along with functional indicators. In the case of determining which products are close substitutes, the MEGs discuss end use, physical and technical characteristics, price relationships and switching costs faced by buyers. In the case of geographic markets, functional indicators of substitutability among geographic areas include transportation costs, shipment patterns, price relationships and foreign competition. The MEGs include a new reference to spatial competition analysis that was accepted by the Competition Tribunal in one case7 to determine the boundaries of local markets.
Market share and concentration
The MEGs identify sellers of the relevant products in the market share stage of the analysis. Firms that currently participate in the relevant markets are included, as well as firms that could readily and profitably sell into the relevant market without incurring significant sunk costs. This type of supply response could occur, for example, if a firm can easily reposition a product or extend its product line to compete in the relevant product market. New entrants that incur significant sunk costs are considered in the entry part of the analysis and are not assigned a market share.
Special considerations apply to foreign suppliers. The MEGs outline a large number of factors, such as the existence of tariffs, quotas, non-tariff barriers, exchange rate fluctuations and antidumping actions that can impair the ability of foreign competition to participate in the relevant market.
The Act makes it clear that the Competition Tribunal cannot find that a merger substantially lessens or prevents competition based solely on the evidence of market share or concentration.8 Nevertheless, it is an important factor. The absence of a high postmerger market share or concentration means that effective competition likely remains sufficient in the relevant market to defeat the exercise of market power.
The Bureau will consider not only the current level of market share, but also how that market share has changed in the past and the potential for significant changes in the future due, for example, to changes in technology. The MEGs note historical market share may be less relevant in bidding markets where rapid changes in market position are common.
The MEGs retain the safe harbour market share thresholds set out in the original guidelines. The Bureau will not generally challenge a merger on the basis of a unilateral exercise of market power where the merged firm has less than a 35 per cent market share. It will not generally challenge a merger on the basis of a coordinated exercise of market power when the post-merger market share accounted by the four largest firms would be less than 65 per cent9 or when the post-merger market share of the merged entity would be less than 10 per cent. Mergers that exceed these thresholds are not necessarily anti-competitive and the Bureau will consider the other factors set out in the Act, most notably effective competition remaining and entry conditions.
The Bureau has not published any enforcement statistics that would provide guidance on what levels of market share or concentration have raised concerns in past cases. In the author’s experience, post-merger market share levels of the merged firm exceeding 50 per cent, combined with evidence of significant barriers to entry and the absence of countervailing factors, are usually required to attract concern about the unilateral exercise of market power in Canada, unless the merger involves markets with differentiated products.10 In the case of coordinated effects, concerns can result even if the postmerger market share level of the merged firm is below 50 per cent.
Anti-competitive effects
The MEGs contain a new section outlining in detail the two types of analysis of competitive effects that the Bureau undertakes: unilateral effects and coordinated effects.11
A unilateral exercise of market power occurs when the merged entity can impose a material price increase without regard to a competitive response by its rivals. This is more likely when the merging firms account for a significant share of the market, since buyers of the merged firm have limited options to turn to in response to a price increase. In markets with differentiated products, a significant price increase by the merged firm may be profitable even at a less than dominant market share if the products of the merging partners are seen as very close substitutes by buyers, thereby limiting the loss of sales to other firms. In markets where firms compete based on capacity, a unilateral exercise of market power may be possible where the competing firms are capacity-constrained.
Coordinated effects occurs where a group of firms is able to profitably coordinate its behaviour because of each firm’s accommodating reaction to the conduct of others. The Bureau assesses whether a merger makes such coordinated behaviour more likely or effective.12 Such behaviour can involve tacit understandings on price and non-price dimensions of competition. The Bureau will consider what market conditions exist that help firms reach such understandings and that allow firms to sustain such conduct by being able to monitor one another’s conduct and credibly punish firms that deviate from the understandings. The Bureau will also consider the ability to sustain such conduct in the face of reactions by non-coordinating suppliers or buyers.
The most significant change in the MEGS compared to the original guidelines is the increased emphasis and guidance given by the Bureau in its analysis of coordinated effects. This topic received little attention in the original guidelines because, until recent years, the focus of the Bureau’s attention had been on determining whether a merger lessened or prevented competition based on a unilateral exercise of market power.13
In 1998 the Bureau published the Merger Enforcement Guidelines as Applied to a Bank Merger (BMEGs). The BMEGs were intended to provide further guidance on the application of the MEGs to the financial services sector. They contained a more detailed explanation of coordinated effects and the factors the Bureau would consider in any such analysis. What followed was a series of cases where competition concerns were raised based in some measure on coordinated effects.14 In the Superior Propane case,15 the Competition Tribunal made a finding of a substantial lessening of competition in a number of markets based on an increased likelihood of interdependent (the equivalent of coordinated) behaviour.
The MEGs reflect the increased attention that the Bureau is giving to competitive concerns arising from coordinated effects. This change has generated concern among competition law practitioners in Canada. The fear is that because of its small population base, Canada has many markets that are already highly concentrated and subject to some degree of oligopolistic or coordinated behaviour. In this environment, a strict application of coordinated effects analysis could lead to very active and interventionist merger enforcement. However, the MEGs indicate the Bureau’s analysis will consider how the merger changes the competitive dynamic, for example, by removing or reducing pre-merger constraints on coordination.16 In other words, how exactly does reducing the number of market participants by one, changing the distribution of market share or the cost structure of the merging parties increase the risk of coordinated effects? The burden of proof will rest with the Bureau to demonstrate how these changes to pre-merger conditions will likely lead to anti-competitive effects.
Entry
The MEGs indicate that the Bureau will examine the timeliness, likelihood and sufficiency of entry in its analysis. To be relevant, entry must be on a sufficient scale to defeat a material price increase in a substantial part of the relevant market within two years of the exercise of market power. In conducting this analysis, the Bureau will make an assessment of the likelihood and sufficiency of potential entry in the two-year period. The analysis will consider a host of entry conditions that can impact on the decision to enter and affect the viability of any such entry, such as the presence of substantial sunk costs, the existence of long-term contracts with terms that impede customer switching, changes in technology and regulatory barriers.
The analysis of potential future entry or expansion by incumbents is a particularly difficult exercise. In two cases, the Bureau has been forced to amend or withdraw its application to contest a merger based on entry that occurred while the case was pending.17
Countervailing power
The MEGs contain a section on countervailing market power held by buyers. The MEGs suggests that buyer concentration can prevent the exercise of seller market power if buyers can easily switch to other suppliers, can credibly expand into upstream markets or can sponsor effective new entry due to the size of business they can offer suppliers.18 Where price discrimination by sellers is practised in a relevant market, market power held by large buyers may be insufficient to stop the merged entity from materially increasing prices to smaller buyers accounting for a significant portion of the market.
Efficiency exception
Canada is one of the few jurisdictions in the world that has an explicit legislated trade-off between anti-competitive effects and efficiency gains. Considerable controversy has surrounded the application of this provision in Canada, raising fundamental questions about the objectives of the Act.
In the original merger enforcement guidelines, the Bureau adopted a total surplus approach where the only anti-competitive effects that are taken into account in the trade-off are those losses in surplus that result from a reduction in output, referred to by economists as the deadweight loss. Under this approach, wealth transfers from buyers to sellers when prices are increased are ignored because they do not represent losses to the economy as a whole. This approach assumes that allocative efficiency is the paramount objective of the Act.
In the Superior Propane case, the Bureau advanced a different standard that would include a broader range of anti-competitive effects, including some portion of the wealth transfers from buyers to sellers. The Competition Tribunal in that case ultimately adopted a standard that encompassed the deadweight loss and the ‘socially adverse’ portion of the transfer. This approach requires the Bureau to assess the socioeconomic profiles of buyers and sellers to determine what value each places on income.
While the Bureau has supported proposed legislative changes to the efficiency standard in light of the Superior Propane jurisprudence, none of the various legislative proposals have been adopted into law. The Bureau has recently announced19 that it not seeking any further amendments to the efficiency provision in the short term. The MEGs indicate that the Bureau will consider a broader range of anti-competitive effects than the deadweight loss when performing the trade-off analysis. These effects will include redistributive effects, non-price effects in the reduction of service, quality and choice, losses of productive efficiency20 and losses of dynamic efficiency. On the other side of the trade-off, the Bureau will also consider gains in productive and dynamic efficiency that may result from the merger.
Merger remedies
On 22 September 2006 the Bureau issued an information bulletin on merger remedies (Remedies Bulletin) as the MEGs do not provide guidance on merger remedies. The Remedies Bulletin outlines the general principals the Bureau applies when it requires merger remedies.
The Remedies Bulletin makes it clear that the Bureau has a strong preference for structural remedies such as the divestment of certain product lines, plants or businesses where serious competition concerns are identified. Moreover, the Bureau will require that remedies be implemented in the form of a consent agreement that will be registered with the Competition Tribunal unless the parties are prepared to resolve the concerns by implementing a remedy such as divestment at or prior to closing of the proposed transaction. The Remedies Bulletin also indicates that parties can normally expect a short time frame (three to six months) in which to complete a divestment remedy, after which a trustee will be appointed to sell the assets at no minimum price. In addition, where there is uncertainty as to whether the identified assets will sell, the Bureau may require that other assets be added to the remedy package that the trustee would be empowered to sell.
Comparison To US Merger Enforcement Policy
The analytical approach outlined in the MEGs will be instantly familiar to readers of the Horizontal Merger Guidelines of the US Department of Justice and the Federal Trade Commission (US HMGs). The two guidelines share far more similarities than differences.
The original guidelines were already similar in approach to the US HMGs. Both used the hypothetical monopolist paradigm for market definition, both called for an extensive entry analysis and both outlined many common analytical factors.
The MEGs strengthen that convergence by providing greater detail and emphasis on coordinated effects, more detail on unilateral effects and by moving supply side substitution from market definition to the market share part of the analysis. The organisation of the MEGs also more closely resembles the US HMGs by integrating the various factors to be considered under section 9321 of the Act into the categories of competitive effects and entry conditions.
Nevertheless, differences arise because of different governing legislation, jurisprudence and enforcement policy choices. In relation to concentration, the Canadian safe harbour thresholds are based on market share and CR4, not the Herfindahl-Hirschman Index (HHI) set out in the US HMGs. The MEGs allow a material price increase to persist for up to two years before it is found to be substantial. While this concept is not included in the US HMGs, it is the case in the US that committed entry that is likely to occur, and that would be sufficient to counteract the competitive concerns, will be considered if it happens within two years.
In terms of entry, the US HMGs indicate that "entry that is sufficient to counteract the competitive effects of concern will cause prices to fall to their pre-merger levels or lower".22 There is no requirement in the MEGs that entry must drive prices to the pre-merger level, only that they eliminate a material price increase. This is consistent with Canadian jurisprudence, which indicates that merger remedies do not have to return the market to a pre-merger level of competition, only reduce any lessening or prevention of competition below the ‘substantial’ threshold.23
In the US, efficiencies must be large enough to reverse the potential harm to consumers caused by the merger in the relevant market, for example, by preventing price increases to consumers.24 There is no such consumer welfare requirement in the MEGs.
Comparison To European Merger Enforcement Guidelines
The European guidance on merger enforcement is contained in two documents, one related to market definition25 for merger and nonmerger provisions, and another guideline on issues specific to merger review26 (the EU MEGs).
In terms of market definition, the EU MEGs appear to adopt a hypothetical monopolist approach since they posit a small nontransitory price increase of 5 per cent to 10 per cent and examine the degree of buyer substitution in response. However, the analysis is not limited to demand substitution but can include supply substitution at the market definition stage, if it has the same degree of immediacy and effectiveness as demand substitution. This is inconsistent with the MEGs and US HMGs approach of including this type of supply response in the market share analysis after the market has been defined.
In relation to market share and concentration, the EU MEGs utilise a blended approach of the HHI and market share to delineate safe harbours. One safe harbour indicates that if the merged firm has a combined market share of less than 25 per cent, it would generally not be problematic. The equivalent Canadian safe harbour of 35 per cent is somewhat more permissive that the EU standard. There is no Canadian safe harbour based on the HHI.
The EU MEGs have an extensive discussion of unilateral (referred to as ‘non-coordinating’) effects and coordinated effects as the two main categories of competitive harm. This discussion is very similar to that contained in the US and Canadian guidelines, and in fact is more extensive in providing guidance on coordinated effects than the MEGs. Particular mention is made of joint ventures and cross-shareholdings in the EU MEGs in relation to the potential for coordinating effects.
The entry analysis is consistent with the US and Canadian requirements of likelihood, timeliness and sufficiency. Entry normally should occur within two years. It must be sufficiently profitable taking into account the additional output of that entry into the market.
Like the MEGs, the EU MEGs contain a section on countervailing buyer power, although no discussion of this concept is found in the US HMGs.
Finally, in relation to efficiencies, the EU MEGs require that consumers be no worse off as a result of the merger. Efficiencies must be timely and passed on to produce benefits to consumers. This consumer welfare approach is clearly not the law in Canada at this time.
The MEGs effectively update the original guidelines by incorporating the jurisprudence, new economic thinking and changes in enforcement approaches that have occurred in the 13 years since their original publication. In so doing, they have achieved even greater convergence with the guidelines of Canada’s major trading partners, the United States and Europe. Greater enforcement convergence should improve the efficiency of cross-border merger review, reduce the potential for conflicting decisions and lower compliance costs.
Footnotes:
1 ‘Merger Enforcement Guidelines’, Competition Bureau, September 2004 (MEGs).
2 The Bureau will also consider how non-price elements of competition, such as quality, product choice and service are impacted by the merger. The MEGs, however, do not provide insight as to how nonprice assessments are done or how they are compared to price effects.
3 A parallel analysis follows in the case of market power held by buyers, who may have the ability to depress purchases of inputs and hence prices below competitive levels for a significant period of time. Recent examples of the Bureau’s concerns with market power for input markets include Canfor Corporation’s merger with Slocan Forest Products Ltd (Competition Tribunal CT-2004-02) and Westwood Fraser Timber Co Ltd’s acquisition of Weldwood of Canada Ltd (Competition Tribunal CT-2004-013). In Cargill Limited’s acquisition of the Better Beef Group of Companies, the Bureau concluded that there was no competitive concerns raised in upstream cattle procurement markets due to limited geographic overlap. (See Competition Bureau Technical Backgrounder entitled ‘Acquisition of Better Beef by Cargill Limited’)
4 The Pfizer/Pharmacia case was an example of a concern relating to new products under development in the testing pipeline but not yet in the market. ‘Competition Bureau Resolves Concerns in Pfizer’s Acquisition of Pharmacia’, News Release, dated 11 April 2003. The Bureau has not applied this prevention of competition concept to general research and development efforts.
5 Canada (Commissioner of Competition) v Superior Propane Inc, Competition Tribunal 1998-002, Reasons and Order dated 30 August 2000 (Superior Propane), paragraphs 85 and 101. All of the Competition Tribunal’s decisions and related documents may be found on its website, www.ct-tc.gc.ca.
6 The Competition Tribunal in Superior Propane indicated that the ownprice elasticity of demand was the measure to be used for market definition, while cross-price elasticity of demand was a useful but indirect measure of substitutability. (Superior Propane, paragraph 62) Own-price elasticity measures the percentage change in quantity demanded for a given percentage change in price for a product, while cross-price elasticity measures the percentage change in quantity demanded of one good for a given percentage change in price in another good.
7 Superior Propane, paragraph 106. For an explanation of spatial analysis, see Superior Propane paragraphs 87–90. In Commissioner of Competition v Canadian Waste Services Holdings Inc, Competition Tribunal 2000-002, Decision dated 28 March 2001, paragraph 76–83, the Competition Tribunal discusses the spatial analysis of the Commissioner’s expert.
8 Section 92(2) of the Competition Act.
9 Economists refer to this concentration measure as the CR4 ratio.
10 For example, in Commissioner of Competition v Bayer AG Aventis Crop Science Holding SA (Competition Tribunal 2002-003), market concentration was 60 per cent in agricultural pesticides used for tomato crops and 47 per cent for use with apple crops (Statement of Grounds and Material Facts, paragraph 45). In Commissioner of Competition v United Grain Growers Limited (Competition Tribunal 2002-001), the merged firm would have held in excess of 50 per cent of primary grain handling in a number of markets and 63 per cent of port terminal grain handling capacity in the Port of Vancouver. (Statement of Grounds and Material Facts, paragraph 12). In Commissioner of Competition v Lafarge SA (Competition Tribunal 2001-004), the merging parties would have held 58 per cent of cement capacity in Ontario. (Statement of Grounds and Material Facts, paragraph 33). In Director of Investigation and Research v ADM Agri-Industries Ltd, the merged firm would have held 61 per cent of bulk hard wheat flour milling capacity in the Quebec/ Atlantic provinces. (Competition Tribunal 1997-002, Statement of Grounds and Material Facts, paragraph 37). However, as noted in the text, where markets contain differentiated products, concerns about the unilateral exercise of market power may be expressed at lower levels of combined market share than 50 per cent.
11 In the original guidelines, the term ‘interdependent behaviour’ is used to describe the type of conduct covered by coordinated effects as described in the MEGs.
12 MEGs, paragraph 5.17.
13 The one notable exception was the acquisition of Canadian operations of Texaco by Imperial Oil. This transaction raised significant competition concerns based largely on coordinated effects. Canada (Director of Investigation and Research) v Imperial Oil Limited, Competition Tribunal 1989-003.
14 In 1998 the Bureau concluded that the proposed merger of the Royal Bank of Canada and the Bank of Montreal and the proposed merger of the Canadian Imperial Bank of Commerce with the Toronto-Dominion Bank would likely substantially lessen or prevent competition. This conclusion took into account an increased likelihood of coordinated behaviour following the mergers. In Abitibi’s acquisition of Donohue, coordinated effects played an impor tant role (Statement of Grounds and Material Facts, Commissioner of Competition v Abitibi-Consolidated Inc, Competition Tribunal 2001-009), as well as in Bayer’s acquisition of Aventis (Statement of Grounds and Material Facts, Commissioner of Competition v Bayer AG and Aventis CropScience Holding SA, Competition Tribunal 2002-003).
15 Superior Propane, paragraphs 308–309.
16 MEGs, paragraph 5.28, p25. In the Rogers/Microcell case, the Bureau noted that significant factors that existed pre-merger that constrained coordination (growing demand, innovation and a history of vigorous competition) would not be diminished by the merger. ‘Acquisition of Microcell Telecommunications Inc by Rogers Wireless Communications Inc’, Technical Backgrounder, dated 12 April 2005.
17 Director of Investigation and Research v Canadian Pacific Limited, Competition Tribunal 1996-002 and Director of Investigation and Research v Dennis Washington et al, Competition Tribunal 1996-001. In a third case, Commissioner of Competition v Rona Inc, Competition Tribunal 2003-007, a consent agreement requiring the divestment of a home improvement superstore was rescinded by the Competition Tribunal due to the entry by Home Depot into the local market of concern.
18 In Whirlpool Corporation’s acquisition of Maytag Corporation, the Bureau concluded that large retailers had the ability to switch to competing suppliers in a short space of time and had some leverage over manufacturers. In this case the market shares of the retailer’s house brands were attributed to the retailers, not to the manufacturers that supplied those appliances (See Competition Bureau Technical Backgrounder entitled ‘Acquisition of Maytag by Whirlpool’).
19 Speaking Notes for Sheridan Scott, commissioner of competition, Canadian Bar Association Annual Fall Conference on Competition Law, dated 28 September 2006.
20 The idea is that some mergers may increase costs since the incentive to be cost competitive is less if the merged firm is insulated from competitive pressure.
21 Section 93 outlines factors the Competition Tribunal may consider in its determination of a substantial lessening or prevention of competition, including the availability of substitute products, barriers to entry, effective competition remaining, foreign competition, removal of a vigorous and effective competitor, change and innovation in a market and likely business failure.
22 US HMGs, section 3.0.
23 Canada (Director of Investigation and Research v Southam [1997] 1 SCR 748 paragraph 85.
24 The US agencies will also consider efficiencies with no short term, direct effect on prices if they will likely produce benefits in the longer term. Delayed benefits will be given less weight. US MEGs, footnote 37.
25 ‘Commission Notice on the definition of the relevant market for the purposes of Community competition law’, Official Journal of the European Union C372 on 9 December 1997.
26 ‘Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings’, Official Journal of the European Union 5 February 2004, C31/5-C31/18.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.