On Tuesday, Minister of Commerce Paul Goldsmith decided not to proceed with the long debated criminalisation of cartel behaviour.As Hartwich notes it may sound strange that pro-competitive behaviour of companies could ever be confused with anti-competitive behaviour. Hartwich writes,
The Minister’s explanation was telling: “In weighing up the benefits of criminalising cartel activity, the government had to consider the significant risk that cartel criminalisation would have a chilling effect on pro-competitive behaviour between companies.”
The problem lies in the nature of competition law. It is an area of law which is prone to arbitrariness. Practically everything is a matter of interpretation.William Landes summaries the point in the following quote on why Coase gave up antitrust,
Ronald [Coase] said he had gotten tired of antitrust because when the prices went up the judges said it was monopoly, when the prices went down they said it was predatory pricing, and when they stayed the same they said it was tacit collusion. (William Landes, “The Fire of Truth: A Remembrance of Law and Econ at Chicago”, Journal of Law and Economics (1981) p. 193.)If everything is illegal what is a firm to do?
Similarly, the benchmark of “competition” is vague. For what should it mean? Is it the theoretical but unrealistic state of so-called “perfect competition” taught in many economics textbooks? Or is it the process of companies actually competing with each another? And if so, how do you measure that?Rothbard's point about cartels being illegal while mergers which can achieve the same result being legal is comment on a relatively recent change in thinking on competition policy. If you go back to, say, the 1950s integration was looked at with just as much suspicion as cartels are today. Recently I came across an interesting comment on the old view on integration and antitrust policy by Joseph J. Spengler
Then there is the difficulty in finding proper definitions. To quote the late economist Murray Rothbard, “there is nothing anticompetitive per se about a cartel, for there is conceptually no difference between a cartel, a merger, and the formation of a corporation: all consist of the voluntary pooling of assets in one firm to serve the consumers efficiently.” Indeed. Yet somehow the formation of a corporation is fine whereas a merger or a cartel might be illegal.
RECENT decisions suggest that the United States Supreme Court is beginning to look upon integration as illegal per se, under the antitrust laws. It may be presumed, in so far as this inference is valid, that the Court believes that integration necessarily reduces competition "unreasonably." No sharp distinction is made by the Court between vertical and horizontal integration. (Joseph J. Spengler, "Vertical Integration and Antitrust Policy", Journal of Political Economy, Vol. 58, No. 4 (Aug., 1950), pp. 347-352.)This was written in 1950 and things have changed since it is now accepted that there are often efficiencies that result from integration and now the US Antitrust Division typically requires a showing of market power before it considers whether a such arrangement poses serious competitive concerns.
At least part of the reason for the change in view is due to the work of Oliver Williamson, Williamson was sceptical of the conventional wisdom of the time (1960s), which presumed that the purpose and effect of many integration practices was the enhancement of market power and the erection of entry barriers. Contrary to this view, which was widely adopted by antitrust lawyers and courts in the 1960s, Williamson could see rationales for various integration practices that were based instead on economic efficiency.
If we accept that integration can have efficiency justifications then why not cartels? At least we should ask what the reasons for the formation of the cartel are and not just assume that cartels are evil per se. The government's decision can be seen as a small step in this direction.
Update: Donal Curtin at the Economics New Zealand blog takes a more traditional (and anti) view of the government's decision when he argues "Hard core" cartelists are criminals.