Like most other sectors of the economy, private schools have been significantly affected by the coronavirus pandemic. As with all schools, they have been restricted to providing their pupils with online instruction. In addition, some parents are likely to have seen their ability to pay the high fees private schools charge restricted. As a result of both of these factors, private schools have been forced to look into providing discounts or refunds on their fees. However, the UK competition authority have received evidence that these schools may have been communicating with each other over how they will set these fee reductions. The authority is concerned that this will allow the schools to restrict the discounts and keep their fees higher.
In other markets (see here and here) the competition authorities have been prepared to relax certain elements of competition law in light of the coronavirus situation. However, price fixing is the severest breach of competition law and the Competition and Markets Authority (CMA) has been clear that this continues to be the case in the current climate. A CMA spokesperson said:
Where cooperation amongst businesses or other organisations is necessary to protect consumers in the coronavirus outbreak, the CMA will not take enforcement action. But we will not tolerate organisations agreeing prices or exchanging commercially sensitive information on future pricing or business strategies with their competitors, where this is not necessary to meet the needs of the current situation.
Therefore, the CMA has written to the Independent Schools Council and other bodies representing the private school sector. This letter made clear that communicating over the fee reductions would be very likely to breach competition law and could result in fines being imposed.
This warning is important since the sector has a history of illegal communication between schools. In 2006 the Office of Fair Trading (OFT) (one of the predecessors to the CMA) imposed fines when it discovered that 50 of them, including Eton and Harrow, had for a number of years shared information on the fees they intended to charge. The OFT discovered that this had taken place following evidence obtained by a student who hacked into their school’s computer system. Here the student found information on the intended fees of competitor schools and leaked this information to the press. It is clear that the CMA will keep a close eye on private schools as they react to the ongoing pandemic.
- What are the key features of the private school sector? Is this a market where you would expect competition to be intense?
- Why is price fixing the severest breach of competition law?
- Assuming communication between the private schools is eradicated, how would you expect the sector to be affected by the coronavirus pandemic?
Late last year I wrote a blog post describing how the UK Competition & Markets Authority (CMA) was looking into Amazon’s investment in online food delivery company Deliveroo. Through this investment Amazon would become a minority shareholder in Deliveroo and be able to participate in the management of the company.
At this time the CMA had completed its initial investigation and decided that it had concerns about the impact the investment would have on competition. Since Amazon and Deliveroo did not then offer any proposal to address these concerns, the CMA referred the case for a full-blown investigation. They were not expected to make a decision until June. However, earlier this month the CMA announced that they would provisionally clear the investment.
This decision is a result of the impact coronavirus pandemic has had on the UK economy. The lockdown in the UK has seen many of the restaurants Deliveroo previously delivered from temporarily shutting down. In response, Deliveroo has significantly expanded the online grocery store delivery part of its business. Despite this, it appears that overall the pandemic has significantly reduced their revenues. This will clearly have a significant impact on gig economy workers who, more generally, are particularly affected by the current circumstances (see the earlier post on this site).
As a result of the pandemic, Deliveroo informed the CMA that they would go out of business without the investment from Amazon. This is very much in line with wider evidence of the impact the pandemic is already having on businesses. The CMA accepted that without additional funding Deliveroo would exit the market and that under the current circumstances it would be very difficult for them to secure an alternative source of funding. Furthermore, they regarded Deliveroo exiting the market as the worst outcome for competition, with Stuart McIntosh, Chair of the inquiry group, stating that:
This could mean that some customers are cut off from online food delivery altogether, with others facing higher prices or a reduction in service quality. Faced with that stark outcome, we feel the best course of action is to provisionally clear Amazon’s investment in Deliveroo.
The unprecedented circumstances created by the coronavirus pandemic provide a clear justification for the approach the CMA has taken. However, in the long-run there may be adverse consequences for competition. For example, the reduction in competition in online grocery store delivery that the CMA originally feared may materialise. In addition, it will be interesting to see whether the effect the pandemic has on Deliveroo’s business makes it more likely that Amazon will look to fully acquire them.
- Distinguishing between the short and long run, how do you think the market would change if Deliveroo were to exit?
- Why do you think it would be difficult for Deliveroo to find alternative sources of funding at the current time?
- What trade-offs would the CMA have had to consider when deciding to clear Amazon’s investment?
As the Coronavirus pandemic continues to escalate in the UK, the government has been forced to introduce a range of drastic measures, including severe restrictions on movement of people to ensure social distancing. Supermarkets have also been forced to act as they experienced panic buying and struggled to keep up with supply. They responded by starting to impose limits on the number of certain items an individual consumer could purchase and by reducing the range of products they made available. In addition, supermarkets contacted the government to suggest that competition law should be relaxed to allow the rival chains to coordinate their response to the ongoing situation.
WM Morrison, the forth largest supermarket retailer in the UK, was one of the key players lobbying for this change. Their chief executive, David Potts, argued that “There will be legislation that works perfectly in peacetime and not so well in wartime.”
The supermarket industry is in fact a market where the UK competition authorities have expressed considerable concerns in the past regarding a lack of competition (see for example the 2008 market investigation and the recent decision to block the merger between Sainsbury’s and Asda). The supermarkets also previously made similar demands for a relaxation of competition law in the event of a no-deal Brexit.
Despite this, the government has agreed to temporarily relax elements of competition law to help supermarkets respond to the Coronavirus crisis with the Environment Secretary, George Eustice, stating that:
By relaxing elements of competition laws temporarily, our retailers can work together on their contingency plans and share the resources they need with each other during these unprecedented circumstances.
In moves supported by the Competition and Markets Authority, laws enabling them to do so will soon be passed through Parliament. Supermarkets will be allowed to:
- share data with each other on stock levels
- cooperate to keep shops open
- share distribution depots and delivery vans
- pool staff with one another to help meet demand.
It is also expected that the Groceries Code Adjudicator will take a pragmatic approach to rules previously in place to prevent the big supermarket chains abusing their power over suppliers. These rules previously prevented supermarkets from stopping orders from a given supplier without reasonable warning. However, it is now accepted that they may need to do so in order to focus on supplying a restricted range of essential products.
Such relaxation of competition laws has been rare, with previous examples being measures taken in 2006 for the maintenance and repair of warships and in 2012 during the fuel crisis. In contrast, typically competition law is extremely hot on preventing agreements between firms. This is due to the fact that they distort competition and prevent the considerable benefits that can arise for consumers when firms compete to offer the best deals.
In the extreme situation the UK is currently in, the government’s stance appears to be that there are sufficient other benefits from restricting competition between supermarkets and allowing some degree of cooperation. It is then important that the form of cooperation between the supermarkets is restricted to narrow areas that will help to ensure the continuity of supply. In particular, it would be worrying if the supermarkets started discussing the prices they charge. Already food prices may rise due to increased demand and a potential shortage of supply. Furthermore, many consumers will see their income reduced. Therefore, it is important that coordination between supermarkets doesn’t result in further increases in prices.
It is therefore reassuring that the Government made clear that the relaxation of competition law:
will be a specific, temporary relaxation to enable retailers to work together for the sole purpose of feeding the nation during these unprecedented circumstances. It will not allow any activity that does not meet this requirement.
The Competition and Markets Authority has also stressed that they will not:
tolerate unscrupulous businesses exploiting the crisis as a ‘cover’ for non-essential collusion. This includes exchanging information on longer-term pricing or business strategies, where this is not necessary to meet the needs of the current situation.
Once the current crisis is over, it will also be important that the competition authority closely monitors the supermarket sector to ensure that cooperation between the supermarkets ends and normal competitive conduct is resumed.
- Outline the effects agreements between firms to raiser prices have on economic welfare.
- What are the pros and cons of allowing cooperation between the supermarkets in response to the Coronavirus crisis?
The online market for food delivery has grown rapidly grown in recent years. Deliveroo was founded in 2013 and has become one of the most recognised brands in this market. It now has a presence in around 100 towns and cities in the UK. In addition to offering customers restaurant cooked meals delivered straight to their homes, Deliveroo also provides a grocery store delivery service, for example in partnership with the Co-op.
Despite Deliveroo’s strong brand, the market leader in online restaurant delivery is actually Just Eat. Just Eat’s business model is built on it acting as an intermediary between restaurants and consumers who can use Just Eat’s website or app to order take-aways. This is in contrast to Deliveroo which also provides the delivery service. This means that Just Eat’s service is more viable in smaller towns. Deliveroo’s other main rival is Uber Eats.
Having been founded in the UK, Deliveroo has subsequently expanded its operations to around 10 other countries. However, this global expansion resulted in Deliveroo making losses of almost £200m in 2017. In part as a result of these losses, Deliveroo decided to look for new investment and by May 2019 had raised £450m. Deliveroo intends to use this money to fund its continued international expansion and to improve the service it provides. This includes growing its delivery-only kitchens business, which enables it to be less reliant on links with traditional restaurants.
Amazon was one of the big investors in Deliveroo, although the exact amount it invested is unknown. Interestingly, both Amazon and Uber have previously made approaches to buy Deliveroo outright. For Amazon this latest move may be a first step before looking to fully acquire Deliveroo.
Despite this not being a full merger or acquisition, it was still investigated by the UK Competition and Markets Authority (CMA). Its remit allows it also to examine situations where an enterprise gains a ‘material influence over the policy of another’. This was the case with Amazon’s investment which, despite only allowing it to become a minority shareholder, enables it to participate in the management of the company.
Last week the CMA announced that it had completed its initial investigation and that it had concerns about the investment. Andrea Gomes de Silva, CMA Executive Director, stated that:
If the deal were to proceed in its current form, there’s a real risk that it could leave customers, restaurants and grocers facing higher prices and lower quality services as these markets develop. This is because the significant competition which could otherwise exist between Amazon and Deliveroo would be reduced.
The CMA has two specific concerns. Firstly, it is worried that competition in online restaurant delivery will be harmed. Amazon had started competing with Deliveroo in this market in 2016 when it launched Amazon Restaurants. However, it shut this down two years later. The CMA uncovered internal documents from Amazon suggesting that it continued to monitor closely this market. Therefore, the CMA believed that Amazon re-entering the market was a distinct possibility and argued that this would be a substantial boost for competition. The CMA’s concern was that its investment in Deliveroo would make this re-entry less likely.
On the other hand, there is a counterargument to the CMA’s which says that Amazon’s entry through investment, even if only at this time resulting in minority ownership of Deliveroo, could itself boost competition. This is an important trade-off the CMA should take into account.
Secondly, the CMA is worried that Amazon’s investment will also harm competition in online grocery store delivery. Here, Amazon and Deliveroo are two of the leading players in the market. The CMA believes that, as the market grows in the future, competition between the two could intensify. However, the investment in Deliveroo would put this in jeopardy.
At the time of writing, Amazon and Deliveroo have five working days to offer proposals to the CMA to address these competition concerns. It will be interesting to see how they respond to the CMA and whether a full-blown investigation follows. If it does, this may eventually lead to the CMA blocking Amazon’s investment.
POSTSCRIPT: Amazon and Deliveroo did not offer a proposal to address the competition concerns and so on 27th December the CMA referred the case for a full-blown investigation.
To be continued.
- What are the key features of competition in the online market for food delivery?
- What are the pros and cons of Just Eat’s business model in comparison with Deliveroo’s?
- What are the potential advantages Amazon has over the other players in the online market for food delivery?
The USA has seen many horizontal mergers in recent years. This has turned industries that were once relatively competitive into oligopolies, resulting in lower output and higher prices for consumers.
In Europe, by contrast, many markets are becoming more competitive. The result is that in industries such as mobile phone services, airlines and broadband provision, prices are considerably lower in most European countries than in the USA. As the French economist, Thomas Philippon, states in a Guardian article:
When I landed in Boston in 1999, the United States was the land of free markets. Many goods and services were cheaper than in Europe. Twenty years later, American free markets are becoming a myth.
According to Asher Schechter (see linked article below):
Nearly every American industry has experienced an increase in concentration in the last two decades, to the point where … sectors dominated by two or three firms are not the exception, but the rule.
The result has been an increase in deadweight loss, which, according to research by Bruno Pelligrino, now amounts to some 13.3 per cent of total potential surplus.
Philippon in his research estimates that monopolies and oligopolies “cost the median American household about $300 a month” and deprive “American workers of about $1.25tn of labour income every year”.
One industry considered by the final two linked articles below is housebuilding. Since the US housing and financial crash of 2007–8 many US housebuilders have gone out of business. This has meant that the surviving companies have greater market power. According to Andrew van Dam in the linked Washington Post article below:
They have since built on that advantage, consolidating until many markets are controlled by just a few builders. Their power has exacerbated the country’s affordable-housing crisis, some economists say.
According to research by Luis Quintero and Jacob Cosman:
… this dwindling competition has cost the country approximately 150 000 additional homes a year – all else being equal. With fewer competitors, builders are under less pressure to beat out rival projects, and can time their efforts so that they produce fewer homes while charging higher prices.
Thanks to lobbying of regulators and politicians by businesses and various unfair, but just about legal, practices to exclude rivals, competition policy in the USA has been weak.
In the EU, by contrast, the competition authorities have been more active and tougher. For example, in the airline industry, EU regulators have “encouraged the entry of low-cost competitors by making sure they could get access to takeoff and landing slots.” Politicians from individual EU countries have generally favoured tough EU-wide competition policy to prevent companies from other member states getting an unfair advantage over their own country’s companies.
- What are the possible advantages and disadvantages of oligopoly compared with markets with many competitors?
- How can concentration in an industry be measured?
- Why have US markets become more concentrated?
- Why have markets in the EU generally become more competitive?
- Find out what has happened to levels of concentration in the UK housebuilding market.
- What are the possible effects of Brexit on concentration and competition policy in the UK?