Category: Economics for Business: Ch 21

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Digital Markets: Reform of competition laws

The emergence of the digital economy has brought about increased competition across a wide range of products and services. The digital economy has provided businesses with the opportunity to produce new categories of goods and services with the aid of artificial intelligence. This new digital era has also been beneficial for consumers who now have greater choice and access to often higher-quality products at lower prices.

But while the digital revolution has facilitated greater competition, it also presents some challenges for competition law enforcement. Competition agencies continue to intensify their scrutiny of the digital economy as they try to get to grips with both the opportunities and challenges.

The role of regulation

Many agencies are aware that regulatory overreach could have negative effects on the development of digital markets. Therefore, any competition enforcement in this area needs to be evidenced-based.

A number of agencies have commissioned market studies or appointed experts in the digital field to prepare industry reports. While many of these reports and studies have found that existing competition rules generally continue to provide a solid basis for protecting competition in the digital age, there is growing demand for various changes to regulation. The reports have generally noted that the traditional tools for competition analysis may require some adaptation or refinement to address better the specificities of online markets, such as the multisided nature of platforms, network effects, zero-price markets, ‘big data’ and the increased use of algorithms.

Tech giants and online platforms, in particular, have been a focus of recent intervention by competition authorities. Investigations and intervention have related to a range of practices, including self-preferencing in the ranking of search results, the bundling of apps (and other alleged anti-competitive leveraging strategies), the collection, usage and sharing of data, and the setting of access conditions to mobile ecosystems and app stores.

The duration and complexity of these investigations have been met with concerns that competition authorities are not sufficiently equipped to protect competition in fast-moving digital markets. These concerns have been amplified by the growth in size and importance of online platforms, their significant economies of scale and network effects, and the risk that market power in digital markets can become quickly entrenched.

In addition to the commissioned reports, some agencies have established or appointed specialist digital markets units or officers. The aim of such units is to develop expertise and regulation to deal with fast-paced digital markets. In Europe, The Digital Markets Act (DMA) was adopted by the EU in response to these concerns to establish a uniform ex-ante regulatory regime to make digital markets fairer and more competitive, and to prevent a fragmentation of the EU’s internal market.

A recent case concerns Apple. Because of the Digital Markets Act, Apple has been required to allow app store competitors onto its products. This will come into effect in 2024.

UK policy

In the UK, the government has been concerned that ‘the unprecedented concentration of power amongst a small number of digital firms is holding back innovation and growth’. UK competition rules are thus set to change significantly, with the government setting out the framework for an entirely new ‘pro-competition regime’ for digital markets. As it states in the Executive Summary to its proposals for such a regime (see linked UK official publication below):

The size and presence of ‘big’ digital firms is not inherently bad. Nonetheless, there is growing evidence that the particular features of some digital markets can cause them to ‘tip’ in favour of one or two incumbents… This market power can become entrenched, leading to higher prices, barriers to entry for entrepreneurs, less innovation, and less choice and control for consumers.

It has established a new Digital Markets Unit (DMU) within the Competition and Markets Authority (CMA). It was launched in ‘shadow form’ in April 2021, pending the introduction of the UK’s new digital regulatory regime. Under the proposals, the new regime will focus on companies that the DMU designates as having ‘strategic market status’.

The government is expected to publish its much-awaited Digital Markets, Competition and Consumer Bill, which, according to legal experts, will represent the most significant reform of UK competition and consumer protection laws in years.

It is expected that the Bill will result in important reforms for competition law, but it is also expected to give the DMU powers to enforce a new regulatory regime. This new regime will apply to UK digital firms that have ‘strategic market status’ (SMS). This will be similar to the EU’s Digital Markets Act in how it applies to certain ‘gatekeeper’ digital firms. However, the UK regulations are intended to be more nuanced than the EU regime in terms of how SMS firms are designated and the specific obligations they will have to comply with.

A report by MPs on the influential Business, Energy and Industrial Strategy Committee published in October, urged the Government to publish a draft Digital Markets Bill that would help deter predatory practices by big tech firms ‘without delay’.

On 17th November 2022, the UK Government announced in its Autumn Statement 2022 that it will bring forward the Bill in the third Parliamentary session. There has been no specific date announced yet for the first reading of the Bill, but it will probably be in Spring 2023. Current expectations are that the new DMU regime and reforms to competition and consumer protection laws could be effective as early as October 2023.

Proposals for the Bill were trailed by the Government in the Queen’s Speech. It announced measures that would empower the Competition and Markets Authority’s (CMA) Digital Markets Unit (DMU) to rein in abusive tech giants by dropping the turnover threshold for immunity from financial penalties from £50 million to £20 million and hiking potential maximum fines to 10% of global annual income. Jeremy Hunt, the Chancellor of the Exchequer, said that the Bill, once enacted, would ‘tackle anti-competitive practice in digital markets’ and provide consumers with higher quality products and greater choice. The strategy includes tailored codes of conduct for certain digital companies and a bespoke merger control regime for designated firms.

The Bill is also expected to include a wide range of reforms to the competition and consumer law regimes in the UK, in particular:

  • wide-ranging changes to the CMA’s Competition Act 1998 and market study/investigation powers, including significant penalties for non-compliance with market investigation orders;
  • significant strengthening of the consumer law enforcement regime by enabling the CMA directly to enforce consumer law through the imposition of fines;
  • changes to UK consumer laws to tackle subscription traps and fake reviews and to enhance protections for savings schemes.

Competition law expert Alan Davis of Pinsent Masons said:

Importantly, the Bill will bring about major reforms to consumer protection law, substantially strengthening the CMA’s enforcement powers to mirror those it already uses in antitrust cases, as well as important changes to merger control and competition rules.

It is anticipated that the Bill will announce the most significant reforms of UK competition and consumer protection laws in years and is expected to have an impact on all business in the UK to varying degrees. It is advised, therefore, that businesses need to review their approach to sales and marketing given the expected new powers of the CMA to impose significant fines in relation to consumer law breaches.

Conclusions

Technological innovation is largely pro-competitive. However, competition rules must be flexible and robust enough to deal with the challenges of the online world. A globally co-ordinated approach to the challenges raised in competition law by the digital age remains important wherever possible. Under the EU’s Digital Markets Act, firms that are designated as gatekeepers, and those defined as having strategic market status under the UK regime, will be required to undertake significant work to ensure compliance with the new rules.

Articles

UK official publications

Questions

  1. For what reasons may digital markets be more competitive than traditional ones?
  2. What types of anti-competitive behaviour are likely in digital markets?
  3. Explain what are meant by ‘network economies’? What are their implications for competition and market power?
  4. Explain what is meant by ‘bundling’? How is this likely to occur in digital markets?
  5. Give some examples where traditional markets are combined with online ones. Does this make it difficult to pursue an effective competition policy?
  6. Give some examples of ways in which firms can mislead or otherwise take advantage of consumers in an e-commerce environment.
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Hacking capitalism

The development of open-source software and blockchain technology has enabled people to ‘hack’ capitalism – to present and provide alternatives to traditional modes of production, consumption and exchange. This has enabled more effective markets in second-hand products, new environmentally-friendly technologies and by-products that otherwise would have been negative externalities. Cryptocurrencies are increasingly providing the medium of exchange in such markets.

In a BBC podcast, Hacking Capitalism, Leo Johnson, head of PwC’s Disruption Practice and younger brother of Boris Johnson, argues that various changes to the way capitalism operates can make it much more effective in improving the lives of everyone, including those left behind in the current world. The changes can help address the failings of capitalism, such as climate change, environmental destruction, poverty and inequality, corruption, a reinforcement of economic and political power and the lack of general access to capital. And these changes are already taking place around the world and could lead to a new ‘golden age’ for capitalism.

The changes are built on new attitudes and new technologies. New attitudes include regarding nature and the land as living resources that need respect. This would involve moving away from monocultures and deforestation and, with appropriate technologies (old and new), could lead to greater output, greater equality within agriculture and increased carbon absorption. The podcast gives examples from the developing and developed world of successful moves towards smaller-scale and more diversified agriculture that are much more sustainable. The rise in farmers’ markets provides an important mechanism to drive both demand and supply.

In the current model of capitalism there are many barriers to prevent the poor from benefiting from the system. As the podcast states, there are some 2 billion people across the world with no access to finance, 2.6 billion without access to sanitation, 1.2 billion without access to power – a set of barriers that stops capitalism from unlocking the skills and productivity of the many.

These problems were made worse by the response to the financial crisis of 2007–8, when governments chose to save the existing model of capitalism by propping up financial markets through quantitative easing, which massively inflated asset prices and aggravated the problem of inequality. They missed the opportunity of creating money to invest in alternative technologies and infrastructure.

New technology is the key to developing this new fairer, more sustainable model of capitalism. Such technologies could be developed (and are being in many cases) by co-operative, open-source methods. Many people, through these methods, could contribute to the development of products and their adaptation to meet different needs. The barriers of intellectual property rights are by-passed.

New technologies that allow easy rental or sharing of equipment (such as tractors) by poor farmers can transform lives and massively increase productivity. So too can the development of cryptocurrencies to allow access to finance for small farmers and businesses. This is particularly important in countries where access to traditional finance is restricted and/or where the currency is not stable with high inflation rates.

Blockchain technology can also help to drive second-hand markets by providing greater transparency and thereby cut waste. Manufacturers could take a stake in such markets through a process of certification or transfer.

A final hack is one that can directly tackle the problem of externalities – one of the greatest weaknesses of conventional capitalism. New technologies can support ways of rewarding people for reducing external costs, such as paying indigenous people for protecting the land or forests. Carbon markets have been developed in recent years. Perhaps the best example is the European Emissions Trading Scheme (EMS). But so far they have been developed in isolation. If the revenues generated could go directly to those involved in environmental protection, this would help further to internalise the externalities. The podcasts gives an example of a technology used in the Amazon to identify the environmental benefits of protecting rain forests that can then be used to allow reliable payments to the indigenous people though blockchain currencies.

Podcast

Questions

  1. What are the main reasons why capitalism has led to such great inequality?
  2. What do you understand by ‘hacking’ capitalism?
  3. How is open-source software relevant to the development of technology that can have broad benefits across society?
  4. Does the current model of capitalism encourage a self-centred approach to life?
  5. How might blockchain technology help in the development of a more inclusive and fairer form of capitalism?
  6. How might farmers’ co-operatives encourage rural development?
  7. What are the political obstacles to the developments considered in the podcast?
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Is capitalism changing?

The coronavirus pandemic and the climate emergency have highlighted the weaknesses of free-market capitalism.

Governments around the world have intervened massively to provide economic support to people and businesses affected by the pandemic through grants and furlough schemes. They have also stressed the importance of collective responsibility in abiding by lockdowns, social distancing and receiving vaccinations.

The pandemic has also highlighted the huge inequalities around the world. The rich countries have been able to offer much more support to their people than poor countries and they have had much greater access to vaccines. Inequality has also been growing within many countries as rich people have gained from rising asset prices, while many people find themselves stuck in low-paid jobs, suffering from poor educational opportunities and low economic and social mobility.

The increased use of working from home and online shopping has accelerated the rise of big tech companies, such as Amazon and Google. Their command of the market makes it difficult for small companies to compete – and competition is vital if capitalism is to benefit societies. There have been growing calls for increased regulation of powerful companies and measures to stimulate competition. The problem has been recognised by governments, central banks and international agencies, such as the IMF and the OECD.

At the same time as the world has been grappling with the pandemic, global warming has contributed to extreme heat and wildfires in various parts of the world, such as western North America, the eastern Mediterranean and Siberia, and major flooding in areas such as western Europe and China. Governments again have intervened by providing support to people whose property and livelihoods have been affected. Also there is a growing urgency to tackle global warming, with some movement, albeit often limited, in implementing policies to achieve net zero carbon emissions by some specified point in the future. Expectations are rising for concerted action to be agreed at the international COP26 climate meeting in Glasgow in November this year.

An evolving capitalism

So are we seeing a new variant of capitalism, with a greater recognition of social responsibility and greater government intervention?

Western governments seem more committed to spending on socially desirable projects, such as transport, communications and green energy infrastructure, education, science and health. They are beginning to pursue more active industrial and regional policies. They are also taking measures to tax multinationals (see the blog The G7 agrees on measures to stop corporate tax avoidance). Many governments are publicly recognising the need to tackle inequality and to ‘level up’ society. Active fiscal policy, a central plank of Keynesian economics, has now come back into fashion, with a greater willingness to fund expenditure by borrowing and, over the longer term, to use higher taxes to fund increased government expenditure.

But there is also a growing movement among capitalists themselves to move away from profits being their sole objective. A more inclusive ‘stakeholder capitalism’ is being advocated by many companies, where they take into account the interests of a range of stakeholders, from customers, to workers, to local communities, to society in general and to the environment. For example, the Council for Inclusive Capitalism, which is a joint initiative of the Vatican and several world business and public-sector leaders, seeks to make ‘the world fairer, more inclusive, and sustainable’.

If there is to be a true transformation of capitalism from the low-tax free-market capitalism of neoclassical economists and libertarian policymakers to a more interventionist mixed market capitalism, where capitalists pursue a broader set of objectives, then words have to be matched by action. Talk is easy; long-term plans are easy; taking action now is what matters.

Articles and videos

Questions

  1. How similar is the economic response of Western governments to the pandemic to their response to the financial crisis of 2007–8?
  2. What do you understand by ‘inclusive capitalism’? How can stakeholders hold companies to account?
  3. What indicators are there of market power? Why have these been on the rise?
  4. How can entrepreneurs contribute to ‘closing the inequality gap for a more sustainable and inclusive form of society’?
  5. What can be done to hold governments to account for meeting various social and environmental objectives? How successful is this likely to be?
  6. Can inequality be tackled without redistributing income and wealth from the rich to the poor?
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Will a four-day week increase productivity?

In a post at the end of 2019, we looked at moves around the world to introduce a four-day working week, with no increase in hours on the days worked and no reduction in weekly pay. Firms would gain if increased worker energy and motivation resulted in a gain in output. They would also gain if fewer hours resulted in lower costs.

Workers would be likely to gain from less stress and burnout and a better work–life balance. What is more, firms’ and workers’ carbon footprint could be reduced.

In New Zealand, Unilever has begun a one-year experiment to allow all 81 of its employees to work one day less each week and no more hours per day. This, it argues, might boost productivity and improve employees’ work-life balance.

The biggest experiment so far has been in Iceland. From 2015 to 2019 more than 2500 people took part in a pilot programme (about 1 per cent of Iceland’s working population). This involved reducing the working week to four days and reducing hours worked from 40 hours per week to 35 or 36 hours with no reduction in weekly pay.

Analysis of the results of the trial, published in July 2021, showed that output remained the same or improved in the majority of workplaces.

As a result of agreements struck with unions since the end of the pilot programme, 86% of Iceland’s workforce have either moved to shorter hours for the same pay or will gain the right to do so.

Many companies and public-sector employers around the world are considering reducing hours or days worked. With working patterns having changed for many employees during the pandemic, employers may now be more open to rethinking ways of deploying their workforce more productively. And this may involve rethinking worker motivation and welfare.

Articles

Report

Questions

  1. Distinguish between different ways of measuring labour productivity.
  2. Summarise the results of the Iceland pilot.
  3. In what ways may reducing working hours reduce a firm’s total costs?
  4. What are the advantages and disadvantages of the government imposing (at some point in the future) a maximum working week or a four-day week?
  5. What types of firm might struggle in introducing a four-day week or a substantially reduced number of hours for full-time employees?
  6. What external benefits and costs might arise from a shorter working week?
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Positive supply-side effects from the COVID-19 pandemic

One of the major economic concerns about the COVID-19 pandemic has been the likely long-term scarring effects on economies from bankruptcies, a decline in investment, lower spending on research and development, a loss of skills, discouragement of workers, disruption to education, etc. The result would be a decline in potential output or, at best, a slower growth. These persistent effects are known as ‘hysteresis’ – an effect that persists after the original cause has disappeared.

In a speech by Dave Ramsden, the Bank of England’s Deputy Governor for Markets & Banking, he argued that, according to MPC estimates, the pandemic will have caused a loss of potential output of 1.75%. This shortfall may seem small at first sight, so does it matter? According to Ramsden:

The answer is definitely yes for two reasons. First, a 1¾% shortfall as a share of annual GDP for the UK … represents roughly £39 billion – for context, that’s about half of the education budget. And second, that 1¾% represents a permanent shortfall, or at least a very persistent one, on top of the impact of the immediate downturn. If you lose 1¾% of GDP every year for ten years, then in total you have lost 17.5% of one year’s GDP, or around £390bn in 2019 terms

However, as the IMF blog linked below argues, there may be positive supply-side effects which outweigh these scarring effects, causing a net rise in potential GDP growth. There are two possible reasons for this.

The first is that the pandemic may have hastened the process of digitalisation and automation. Examples include ‘video conferencing and file sharing applications to drones and data-mining technologies’. According to evidence from a sample of 15 countries cited in the blog, a 10% rise in such intangible capital investment is associated with about a 4½% rise in labour productivity. ‘As COVID-19 recedes, the firms which invested in intangible assets, such as digital technologies and patents may see higher productivity as a result.’

The second is a reallocation of workers and capital to more productive sectors. Firms in some sectors, such as leisure, hospitality and retail, have relatively low labour productivity. Many parts of these industries have declined during the pandemic, especially those with high labour intensity. At the same time, there has been a rise in employment in firms where output per worker is higher. Such sectors include e-commerce and those where remote working is possible. The greater the reallocation from low labour-productivity to high labour-productivity sectors, the more will overall labour productivity rise and hence the more will potential output increase.

The size of these two effects will depend to a large extent on expectations, incentives and government policy. The blog cites four types of policy that can help investment and reallocation.

  • Improved insolvency and restructuring procedures to enable capital in failed firms to be reallocated to sectors with potential for growth.
  • Promoting competition to enable the exit and entry of firms into expanding sectors and to prevent powerful firms from blocking the process.
  • Refocusing policy from retaining labour in existing jobs to reskilling workers for new jobs, thereby improving labour mobility from declining to expanding sectors.
  • Addressing financial bottlenecks, so as to ensure adequate access to financing for viable firms.

Whether there will be a net increase or decrease in productivity from the pandemic very much depends on the extent to which firms and workers are able and willing to take advantage of new opportunities and the extent to which government supports investment in and reallocation to high-productivity sectors.

Blogs, articles and speeches

Questions

  1. Can actual economic growth be greater than potential economic growth (a) in the short run; (b) in the long run?
  2. Give some example of scarring effects from the COVID-19 pandemic.
  3. What effects might short-term policies to tackle the recession caused by the pandemic have on longer-term potential economic growth?
  4. What practical policies could governments adopt to encourage the positive supply-side effects of the pandemic? To what extent would these policies have negative short-term effects?
  5. Why might (endogenous) financial crises result in larger and more persistent reductions in potential output than exogenous crises, such as a pandemic or a war?
  6. Distinguish between interventionist and market-orientated supply-side policies to encourage the reallocation of labour and capital to higher-productivity sectors.