Tag: competition policy

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The 4Ps approach to merger policy in the UK

The approach towards mergers remains the most controversial area of competition policy. Some argue that policy makers in both the UK and EU have been too easily persuaded by the arguments put forward by firms and so have allowed too many mergers to proceed. Others claim that the opposite is true and that merger policy has prohibited mergers that should have been allowed to proceed. This, then, has a negative impact on investment, innovation, productivity and growth.

In recent years there has been more specific criticism of merger policy in the UK. The government has indicated that it wants the Competition and Markets Authority (CMA) to be less interventionist and take a more pro-growth approach.

In February 2025, in response to this criticism, the CMA launched its new ‘4 Ps’ approach to merger policy: Pace, Predictability, Proportionality and Process. Various changes to the investigation process have been proposed in the past 12 months using this framework.

Pace. The time taken by the CMA to initially assess a merger before deciding whether a Phase 1 investigation is necessary (i.e. the pre-notification procedure) was reduced from 65 to 40 working days. Also, the target to complete straightforward Phase 1 investigations was reduced from 35 to 25 days.

Predictability. The proposed merger guidelines, published in October 2025, provide more detail on (a) what criteria will be used to measure market shares when applying the ‘share of supply test’ (this is where the combined UK market share of two merging businesses is at least 25%, provided one business has a UK turnover of at least £10 million), and (b) the factors that are likely to lead to the competition authorities concluding that one business has gained ‘material influence over another’. Businesses had complained that there was too much uncertainty about the way the share of supply test and material influence were applied. The CMA is also considering greater alignment with other international regulators over decision making rather than its previous policy of acting independently. All these measures should increase the predictability of the investigation process.

Proportionality. Proportionality refers to the objective of addressing any competition issues in merger cases in a way that places the minimum burden on the businesses involved. To improve proportionality, the CMA has indicated that in future cases it will be more willing to use behavioural remedies – requiring firms to take or desist from certain actions. New draft guidelines identify more situations where the use of behavioural remedies may be appropriate. However, they also show that the CMA still views structural remedies (e.g. preventing the merger or requiring firms to demerge or to sell certain assets) as more effective in many situations. Another important measure to improve proportionality is the introduction of a new ‘wait and see’ approach to global mergers. The CMA will now wait to see if the actions taken by other competition authorities in global cases address any concerns in the UK market before deciding whether to launch a review.

Process. To improve the process, the CMA has announced plans to engage with businesses at a much earlier point in the process. For example, it has pledged to share its provisional thinking in the early stages of an investigation by implementing new ‘teach-in’ sessions and having more regular update meetings. Much earlier meetings that focus on possible remedies will also take place. This may make it possible for the CMA to assess the suitability of more complex remedies during a Phase 1 investigation rather than having to wait for a longer and more costly Phase 2 review. Phase 2 reviews will also no longer be managed by panels of independent experts. This role will now be carried out by the internal CMA board.

Some critics argue that the CMA has not fully considered the potential benefits of mergers in many cases. For example, a merger could (a) have procompetitive effects, known as rivalry enhancing efficiencies (REEs) and/or (b) benefits for consumers outside of the relevant market, known as relevant customer benefits (RCBs). In response to this criticism, the CMA is currently reassessing its approach to including evidence on REEs and RCBs.

The CMA is still currently consulting with interested parties about many of these proposed changes. It will be interesting to see what final decisions are made in the next couple of years.

Articles

CMA documentation

Questions

  1. Of all the mergers considered by the CMA in 2024/25, find out what percentage were formally investigated. How many were blocked from taking place? Do you believe that this indicates that merger policy is too weak or too strong?
  2. What three criteria must be met for a business arrangement to be classed as a ‘relevant merger situation’ by the CMA?
  3. Identify some different methods that one business could use to gain material influence over the way another company operates.
  4. Outline the ‘turnover test’, the ‘share of supply test’ and the ‘hybrid test’.
  5. Discuss the potential advantages of using behavioural remedies as opposed to structural remedies in merger cases. Why has the CMA still preferred the use of structural remedies in most situations?
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Age-old problems but new technology: developments in collusion in the algorithmic era

In my previous blog post on this site, I examined how AI-powered pricing tools can act as a ‘double-edged sword’: offering efficiency gains, while also creating opportunities for collusion. I referred to one of the early examples of this, which was the case involving Trod Ltd and GB Eye, where two online poster and frame sellers on Amazon used pricing algorithms to monitor and adjust their prices. However, in this instance there was also an explicit agreement between the firms. As some commentators put it, it was ‘old wine in new bottles‘, meaning a fairly conventional cartel that was simply facilitated through digital tools.

Since then, algorithms have increasingly become part of everyday life and are now embedded in routine business practice.

Some of the effects may have a positive effect on competition. For example, algorithms can help to lower barriers to entry. In some markets, incumbents benefit from long-standing experience, while new firms face significant learning costs and are at a disadvantage. By reducing these learning costs and supporting entry, algorithms could contribute to making collusion harder to sustain.

On the other hand, algorithms could increase the likelihood of collusion. For example, individual algorithms used by competing firms may respond to market conditions in predictable ways, making it easier for firms to collude tacitly over time.

Algorithms can also improve the ability of firms to monitor each other’s prices. This is particularly relevant for multi-product firms. Traditionally, we might expect these markets to be less prone to collusion because co-ordinating across many products is complex. AI can overcome this complexity. In the Sainsbury’s/Asda merger case, for example, the Competition and Markets Authority suggested that the main barrier to reaching and monitoring a pricing agreement was the complexity of pricing across such a wide range of products. However, the CMA also suggested that technological advances could increase its ability to do so in the future.

The ‘hub-and-spoke’ model

One of the other growing concerns is the ability of AI pricing algorithms to facilitate collusion by acting as a ‘hub’ in a ‘hub-and-spoke’ arrangement. In this type of collusion, competing firms (the ‘spokes’) need not communicate directly with one another. Instead, the ‘hub’ helps them to co-ordinate their actions.

While there have been only limited examples of an AI pricing algorithm acting as a hub in practice, what once seemed to be a largely theoretical concern has now become a live enforcement issue.

A very recent example is the RealPage case in the United States. The Department of Justice (DOJ) filed an antitrust lawsuit against RealPage Inc. in August 2024, alleging that RealPage, acting as the ‘hub’, facilitated collusion between landlords (the ‘spokes’).

RealPage provided pricing software to numerous landlords, including the largest landlord in the USA, which manages around 950 000 rental units across the country. These landlords would normally compete independently in setting rental prices, discounts and lease terms to win consumers. However, by feeding competitively sensitive information that would not usually be shared between rivals into RealPage’s system, the software generated pricing recommendations that, according to the DOJ, led to co-ordinated rent increases across competing apartment complexes.

In the RealPage case, the authorities reported that they had access to internal documents and statements from the parties involved, which helped support their allegations. These included references within RealPage to helping landlords ‘avoid the race to the bottom’ and comments from a landlord describing the software as ‘classic price fixing’.

Evidence in these cases really matters because the standard of proof required to establish a hub-and-spoke arrangement is much higher than for traditional cases of explicit collusion. This is because it can be difficult to distinguish between legitimate and anti-competitive communication between retailers and suppliers. Also, proving ‘anti-competitive intent’ is inherently challenging.

Other competition authorities around the world are also turning their attention to these issues. For example, the European Commission recently announced that a number of investigations into algorithmic pricing are underway, signalling a clear shift toward more active scrutiny. As technology continues to advance, it is clear that algorithmic pricing will remain an area where both firms and authorities must move and adapt quickly.

Articles

Questions

  1. In what ways does the RealPage case differ from the earlier Trod Ltd and GB Eye Ltd case? Consider the roles played by the firms, the nature of the alleged co-ordination, and the extent to which pricing algorithms were used to facilitate the conduct.
  2. How might the use of pricing algorithms affect the likelihood of firms colluding, either explicitly or tacitly? Consider ways that algorithms may make collusion easier to sustain but also ways in which they may reduce its likelihood.
  3. Should firms be held liable for anti-competitive outcomes produced by algorithms that ‘self-learn’, even if they did not intend those outcomes? Explain why or why not.
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Competition policy – the evolving approach towards firms that misuse market power

The enforcement of Article 102 of the Treaty on the Functioning of the European Union (TFEU) by the European Commission (EC) tends to focus on exclusionary abuses by firms with significant market power. Exclusionary abuses are actions that limit or prevent competition, as opposed to exploitative abuses that directly harm the consumer, such as charging high prices.

The treatment of exclusionary abuses has evolved over time. Initially, the approach towards enforcement was form-based (i.e. the nature of the abuses), but this changed when the EC produced new guidelines in 2009 which signalled a move to a more effects-based approach.

The EC plans to produce a new set of guidelines in 2025 and published a draft version in August 2024 as part of the consultation process with businesses and other stakeholders. These draft guidelines indicate a partial shift back to a form-based approach. Any moves in this direction made by the EC are likely to influence both national-level competition authorities and the courts.

The form-based approach to policy enforcement

A form-based approach to the enforcement of Article 102 assumes that certain types of business conduct are inherently anti-competitive except in very exceptional circumstances. In other words, there is a presumption that the characteristics or form of the behaviour mean that it must have a negative impact on competition and consumer welfare in virtually all real-world cases.

With a form-based approach to enforcement there is no requirement for the authorities to carry out detailed case-specific analyses of business conduct as part of an investigation. This had been the approach adopted by the EC before 2009. It is possible, however, that the same form of business conduct could have anti-competitive effects in some market situations but pro-competitive effects in others. The EC was criticised for not making enough allowance for the chances of this happening.

The effects-based approach to policy enforcement

In response to this criticism the European Union published a new set of guidelines in 2009 which signalled that the enforcement of Article 102 was moving to a more effects-based approach. The effects-based approach uses economic analysis to assess the impact of a dominant firm’s conduct on a case-by-case basis. Context-specific evidence is examined by the competition authorities to see if the behaviour effectively excludes rival businesses from the market that are just as efficient as the dominant firm.

The use of economics in this effects-based approach gradually increased over time. Initially, the analysis was predominately based on theoretical arguments, but increasingly cases included sophisticated analysis of market-specific evidence using econometric models and market simulations. This, however, led to the following issues.

  • The increasing use of complex economic analysis makes it more difficult to meet the evidentiary standards of the courts and prove a case. As the effects-based approach places a greater burden on the competition authorities to meet these evidentiary standards (i.e. provide evidence of case-specific anti-competitive effects of the conduct) it disproportionality affects their ability to prove cases.
  • Businesses with significant market power are more likely to make large profits and so have access to greater resources than government-funded competition authorities. Therefore, they will be able to employ more economic consultants with the relevant technical expertise to (a) carry out the analysis and (b) communicate the findings effectively in a court case

This led to concerns that the competition authorities were losing cases where there was strong evidence of exclusionary conduct by the dominant firm.

In response to these concerns, the EC announced in 2023 that it would be revising its 2009 guidelines to improve enforcement of Article 102.

The draft guidelines

The draft guidelines published in August 2024 split different types of potentially anti-competitive conduct by dominant firms into three categories.

The first category includes types of conduct where there is a strong presumption of anti-competitive effects: i.e. the sole purpose of the business behaviour is to restrict competition. These types of conduct are referred to as a ‘naked restriction’ and the documentation provides the following three examples:

  • making payments to customers (typically other businesses) on the condition that they cancel or postpone the launch of a product that uses inputs produced by the dominant firm’s rivals;
  • threatening to withdraw discounts offered to suppliers unless they agree to supply the dominant firm’s product in place of a similar product produced by a rival firm;
  • actively dismantling infrastructure used by a rival firm.

The guidelines indicate a form-based approach will be taken when investigating these types of conduct as the EC will not have to provide any case-specific evidence of anti-competitive effects. A business under investigation can challenge the presumption of anti-competitive effects with appropriate evidence, but the guidelines make it clear that this would only succeed in exceptional circumstances. In other words, it is highly unlikely that the conduct could ever be justified on pro-competitive grounds.

The second category of anti-competitive conduct includes actions that are also presumed to have a negative impact on competition. The presumption, however, is not as strong as with naked restrictions, so firms have a better chance of proving pro-competitive effects.

There is a form-based element towards this second category of conduct as the EC will not have to provide any initial case specific evidence of anti-competitive effects. But, if a business under investigation does submit evidence to challenge the presumption of anti-competitive effects, the EC must demonstrate that (a) it has fully assessed this evidence and (b) the evidence is insufficient to prove that the conduct does have pro-competitive effects. As part of this process, the EC can provide its own case-specific evidence. Therefore, for this second category of conduct, the initial burden of proof effectively shifts from the competition authority to the firm under investigation, making it more of a form-based approach. However, if the firm uses relevant evidence to appeal its case, the burden shifts back to the competition authority and becomes a more effects-based approach.

The third category includes types of conduct where the EC must initially provide case-specific evidence that it reduces competition. For this category of conduct, the approach towards enforcement remains the same as in the 2009 guidelines and an effects-based approach is adopted.

It will be interesting to see the extent to which the final guidelines (a) follow the approach outlined in the draft guidance and (b) influence the enforcement of Article 102 by the EC and other national-level competition authorities.

Articles

Questions

  1. What exactly does it mean if a firm has ‘significant’ market power?
  2. What methods do competitions authorities use to assess whether a firm has a dominant market position?
  3. Explain the difference between conduct by dominant firm that is (a) an exploitative abuse of its market power and (b) an exclusionary abuse of its market power.
  4. Explain why a form-based approach towards the enforcement of competition policy is more likely to lead to Type 1 errors (false positives), whereas an effects-based approach is more likely to lead to Type 2 errors (false negatives).
  5. Provide some examples of exclusionary abuses that are not considered to be naked restrictions.
  6. Competition policy guidance documents commonly refer to ‘competition on the merits’. What is the precise meaning of this term?
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The merger of Vodafone and Three: competition implications

In September 2023, UK mobile phone network operators Vodafone and Three (owned by CK Hutchinson) announced their intention to merge. At the time, in terms of total revenue from the supply of mobile phone services to consumers, Vodafone and Three had market shares of 23% and 12%, respectively.

In addition to Vodaphone and Three, there are two other major network operators – the BT Group (BT & EE) and Virgin-media 02, with market shares of around 31% and 23%, respectively, with other operators having a combined market share of 12%. As we shall see below, these other operators use one of the four major networks. Therefore, the merged entity of Vodafone-Three would become the market leader with a share of around 35% and there would only be three major network operators competing in the UK.

Not surprisingly, the UK competition agency, the Competition and Markets Authority (CMA), decided to conduct a detailed investigation into whether the merger would harm competition. However, in early December 2024 the CMA announced its decision to allow the merger to go ahead, subject to several important commitments by the merging parties.

CMA’s phase 1 findings

The CMAs phase 1 investigation raised several concerns with the merger (see fifth CMA link below).

First, it was worried that retail and business customers would have to pay higher prices for mobile services after the merger.

Second, in addition to the four mobile network operators, the UK market is served by a number of mobile ‘virtual’ network operators (MVNOs), for example Sky Mobile and Lyca Mobile. As we saw above, these suppliers account for around 12% of the consumer retail market. The MVNOs do not own their own networks and instead agree wholesale terms with one of the network operators to access their network and supply their own retail mobile services. The CMA was concerned that since the merger would reduce the number of networks competing to host these MVNOs from four to three, it would result in MVNOs paying higher wholesale access prices.

Vodafone and Three did not offer any remedies to the CMA to address these competition concerns. Consequently, the CMA referred the case to phase 2 for a more thorough investigation.

CMA’s phase 2 findings

The CMA’s analysis in phase 2 confirmed its earlier concerns (see linked report below). It was still worried that because the merged entity would become the largest network operator, retail customers would face higher prices or get a poorer service – for example, a reduced data allowance in their contract. In addition, the CMA remained concerned that the MVNOs would be negatively impacted and that this would lessen their ability to offer the best deals to retail customers.

However, during the phase 2 investigation, the merging parties put forward various efficiency justifications for the merger. They argued that the merger would provide them with much needed scale and investment capacity to improve their network and roll-out 5G technology. The CMA recognised these claims but questioned the merging parties’ incentives to go through with the investment once the merger was approved. Furthermore, it was concerned that if they did invest, this would be funded by raising the prices charged to consumers.

As a result, the CMA only agreed to allow the merger once Vodafone and Three accepted remedies that would address these concerns.

The remedies necessary for the merger to proceed

First, the merged entity must cap a range of tariffs and data plans it offers in the retail market for three years.

Second, again for three years, it must commit to maintain the wholesale contract terms it offers to MNVOs.

Finally, over the next eight years, the merged entity must deliver the network upgrade plans that it claimed the merger would allow. The CMA believes that in the long run this network development would significantly boost competition between the three remaining mobile network operators.

The acceptance of remedies of this nature was unusual for the CMA. Typically, like other competition agencies, the CMA has favoured divestment remedies in which the merging parties are required to sell-off some of the assets or capacity acquired. In contrast, the remedies in the Vodafone-Three deal impact on the merging parties’ behaviour.

One clear disadvantage of such remedies is that they require the merged firm’s actions to be monitored, in this case for eight years, to make sure it adheres to the agreed behaviour. One reason why the CMA may have been willing to accept this is that the communications industries regulator, OFCOM, will be able to assist with this monitoring.

It was also surprising that the CMA was willing to allow the number of network operators to decrease to three. Previously, there had been a perception that it was important to maintain four networks. This was certainly the view in 2016 when Three’s attempted merger with O2 was prohibited. This decision was made by the European Commission (EC). However, the CMA raised serious concerns to the EC and when the merging parties offered behavioural remedies argued that these were:

materially deficient as they will not lead to the creation of a fourth Mobile Network Operator (MNO) capable of competing effectively and in the long-term with the remaining three MNOs such that it would stem the loss of competition caused by the merger.

Why has the authorities’ attitude towards the merger changed?

So why has there been a change of stance in this latest attempted merger in the mobile phone sector?

One explanation is that the market has fundamentally changed over time. The margins for network operators have declined, network usage has grown and there has been a lack of investment in expensive 5G technology. This would certainly fit with the CMA’s desire to use the remedies to facilitate network investment.

A second possible explanation is that the CMA has recently faced criticism from UK Prime Minister, Keir Starmer (see third Guardian article below). In a speech at the International Investment Summit in London in October 2024, he said that

We will rip out the bureaucracy that blocks investment and we will make sure that every regulator in this country take growth as seriously as this room does.

In response to this, the CMA has indicated that in 2025 it will review its approach to mergers, ensuring that only truly problematic mergers don’t proceed, and reconsider when behavioural remedies may be appropriate (see final CMA link below).

The CMA’s decision in the Vodafone-Three case certainly demonstrates that it is now willing to accept behavioural remedies when there is a regulator in place to support the subsequent monitoring.

It will be interesting to see how this merger affects competition in the mobile phone market and, more generally, whether the CMA starts to implement behavioural remedies more widely, especially in markets where it would have to do all the subsequent monitoring.

Articles

CMA reports, etc

Questions

  1. Why is it beneficial to have MVNOs in the market for mobile phone services?
  2. Why is it important that MVNOs have a choice of mobile networks to supply their retail mobile services?
  3. How do you think the other mobile network operators will react to the Vodafone-Three merger?
  4. Compare the relative benefits of blocking a merger with requiring merging companies to adopt certain remedies.
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Artificial intelligence in pricing: a double-edged sword?

Artificial Intelligence (AI) is transforming the way we live and work, with many of us knowingly or unknowingly using some form of AI daily. Businesses are also adopting AI in increasingly innovative ways. One example of this is the use of pricing algorithms, which use large datasets on market conditions to set prices.

While these tools can drive innovation and efficiency, they can also raise significant competition concerns. Subsequently, competition authorities around the world are dedicating efforts to understanding how businesses are using AI and, importantly, the potential risks its use may pose to competition.

How AI pricing tools can enhance competition

The use of AI pricing tools offers some clear potential efficiencies for firms, with the potential to reduce costs that can potentially translate into lower prices for consumers.

Take, for instance, industries with highly fluctuating demand, such as airlines or hotels. Algorithms can enable businesses to monitor demand and supply in real time and respond more quickly, which could help firms to respond more effectively to changing consumer preferences. Similarly, in industries which have extensive product ranges, like supermarkets, algorithms can significantly reduce costs and save resources that are usually required to manage pricing strategies across a large range of products.

Furthermore, as pricing algorithms can monitor competitors’ prices, firms can more quickly respond to their rivals. This could promote competition by helping prices to reach the competitive level more quickly, to the benefit of consumers.

How AI pricing tools can undermine competition

However, some of the very features that make algorithms effective can also facilitate anti-competitive behaviour that can harm consumers. In economic terms, collusion occurs when firms co-ordinate their actions to reduce competition, often leading to higher prices. This can happen both explicitly or implicitly. Explicit collusion, commonly referred to as illegal cartels, involves firms agreeing to co-ordinate their prices instead of competing. On the other hand, tacit collusion occurs when firms’ pricing strategies are aligned without a formal agreement.

The ability for these algorithms to monitor competitors’ prices and react to changes quickly could work to facilitate collusion, by learning to avoid price wars to maximise long-term profits. This could result in harm to consumers through sustained higher prices.

Furthermore, there may be additional risks if competitors use the same algorithmic software to set prices. This can facilitate the sharing of confidential information (such as pricing strategies) and, as the algorithms may be able to predict the response of their competitors, can facilitate co-ordination to achieve higher prices to the detriment of consumers.

This situation may resemble what is known as a ‘hub and spoke’ cartel, in which competing firms (the ‘spokes’) use the assistance of another firm at a different level of the supply chain (e.g. a buyer or supplier that acts as a ‘hub’) to help them co-ordinate their actions. In this case, a shared artificial pricing tool can act as the ‘hub’ to enable co-ordination amongst the firms, even without any direct communication between the firms.

In 2015 the CMA investigated a cartel involving two companies, Trod Limited and GB Eye Limited, which were selling posters and frames through Amazon (see linked CMA Press release below). These firms used pricing algorithms, similar to those described above, to monitor and adjust their prices, ensuring that neither undercut the other. In this case, there was also an explicit agreement between the two firms to carry out this strategy.

What does this mean for competition policy?

Detecting collusion has always been a significant challenge for the competition authorities, especially when no formal agreement exists between firms. The adoption of algorithmic pricing adds another layer of complexity to detection of cartels and could raise questions about accountability when algorithms inadvertently facilitate collusion.

In the posters and frames case, the CMA was able to act because one of the firms involved reported the cartel itself. Authorities like the CMA depend heavily on the firms involved to ‘whistle blow’ and report cartel involvement. They incentivise firms to do this through leniency policies that can offer firms reduced penalties or even complete immunity if they provide evidence and co-operate with the investigation. For example, GB eye reported the cartel to the CMA and therefore, under the CMA’s leniency policy, was not fined.

But it’s not all doom and gloom for competition authorities. Developments in Artificial Intelligence could also open doors to improved detection tools, which may have come a long way since the discussion in a blog on this topic several years ago. Competition Authorities around the world are working diligently to expand their understanding of AI and develop effective regulations for these rapidly evolving markets.

Articles

Questions

  1. In what types of markets might it be more likely that artificial intelligence can facilitate collusion?
  2. How could AI pricing tools impact the factors that make collusion more or less sustainable in a market?
  3. What can competition authorities do to prevent AI-assisted collusion taking place?