10 Horizontal Agreements And Their Types

Mr.Saket Sharma

1.  Agreements in restraint of trade

A restraint of trade is simply some kind of agreed provision that is designed to restrain another’s trade or prohibiting agreements that ran counter to public policy, unless the reasonableness of an agreement could be shown.One of the earliest instances of trade restraints has been recorded in the English Common Law system in the doctrine of ‘Restraint of Trade’ which became the precursor to modern competition law.

There is always a possibility that market players can coordinate their actions to achieve a position so that they can indulge in anticompetitive practices. Thus the firms can collude and control production and raise prices. Collusion can be defined as a situation where firms coordinate their actions to reach anti-competitive outcomes and gain higher profits. Collusion can be explicit or tacit. Some anticompetitive agreements may be open, but most are secret. Sometimes they can be in form of less formal agreements and can also form part of “agreement between companies” or in the decisions or rules of professional associations.

As depicted belowi, there is a strong linkage between competition law, and economic development of a country. Thus control of anticompetitive practices including horizontal anticompetitive agreements lead to economic welfare.

1. Horizontal Agreements

Horizontal agreements are those between competitors, i.e., entities at the same level of distribution. Vertical agreements are those between parties on different levels of the chain of distribution, such as between a manufacturer and a distributor, or between a wholesaler and a retailer. Agreements through which restraints are imposed between competitors have traditionally been denominated as horizontal agreements, and those imposed by agreement between firms at different levels of distribution as vertical agreements.Horizontal agreements can prompt violations of competition law because such agreements may include clauses which restrict competition.

It can be said that all anticompetitive effects are of necessity horizontal, since all competition is horizontal, but that such horizontal effects can result from either horizontal or vertical agreementsii. Figure 2 depicts the horizontal and vertical relation between different players in tyre market.

From the figure 2, it is clear that the vertical agreements are between firms in a purchaser–seller relationship, whereas, the horizontal agreements are between the competitors. Generally it has been seen that vertical agreements are givena lenient treatment than the horizontal agreements under the provisions of the Competition law. The reason for such differential treatment is that the horizontal agreements are more likely to reduce competition than the vertical agreements. Horizontal agreements like price fixing and market sharing are agreements which by their nature are almost always considered detrimental to the competition. Generally, horizontal agreements are synonymously referred to as cartels in competition law terminology across the world.

2. Typology of Horizontal Agreements

There can be innumerable ways in which market players interact and conduct their business in a market. Collusion in form of horizontal agreements can take various forms. It is pertinent to discuss here the major ways in which market players indulge in horizontal anticompetitive agreements.

a. Price fixing

Agreements through which the companies mutually set the prices that they want to charge in the market are called price fixing agreements. Imagine a market where four firms manufacturing cement agree to sell their products at a fixed price. Although, sometimes a slight increase in the price of each product hardly matters to a consumer;such price fixing will ultimately generate huge profits for the colluders. Other types of price-fixing agreements include agreements that jointly predetermine the size of profit margins, the extent of discounts andthe level of price increases. Price fixing agreements can take various forms including the following:

• Agreement on price increase
• Agreement to adhere to published prices
• Agreement not to sell unless it is on the agreed price terms
• Agreement on a standard pricing formula
• Agreement regarding providing, eliminating or establishing methodof providing discounts
• Agreement on credit terms that will be offered to customers
• Agreement to eliminategoods and services offered at low prices from the market, thereby limiting supply and raising the prices
• Agreement between cartel members not to change or reduce prices without notifying each other

As is evident from the nature and objectives of the price fixing agreements described above, such horizontal anticompetitive agreements are aimed at furthering the goal of members of the cartelof earning huge profits at the expense of the consumers.

Market Sharing

Another common horizontal agreement amongst competitors is market sharing. These are also called market allocation and market division agreements. Under such agreements, the competitors agree to divide amongst themselves specific territories, customers, or products. Such market allocating actions are restrictive in nature because they leave no room for competition in the market. For example, an agreement amongst competitors to allot certain customers to particular sellers and toallocate or divide sale territories would be anticompetitive.

Trucking Cartel in India Eliminating competition in the market by fixing the freight rates without liberty to the members of the truck operator union to negotiate freight rates individually is common in the trucking industry in India. The M.R.T.P. Commission passed ‘Cease & Desist’ order against Bharatpur Truck Operators Union (order dated 24.8.1984 in RTP Enquiry No.10/1982), Goods Truck Operators Union, Faridabad, (order dated 13.12.1989 in RTP Enquiry No.13.13.1987, Rohtak Public Goods Motor Union (order dated 25.8.1984 in RTP Enquiry No.250/10983. In the absence of any penalty provision, however, no fines could be imposed. As readers will observe in later modules, under new competition regime in India heavy penalty can be imposed for cartel behaviour. Source: Competition Commission of Indiawebsite (www.cci.gov.in)

c. Bid-rigging

Bid rigging takes place when bidders collude and keep the bid amount at a pre-determined level. Such pre-determination is by way of intentional manipulation by the members of the bidding group. Bidders could be actual or potential ones but they collude and act in concert. Bid rigging is the way that conspiring competitors effectively raise prices where purchasers– often various departments and authorities of the Government acquire goods or services by soliciting competing bids. There can be different forms of bid rigging:

Subcontract bid-rigging: Under this type of bid-rigging the conspirators agree not to submit bids, or to submit cover bids that are intended not to be successful, on the condition that some parts of the successful bidder’s contract will be subcontracted to them.

Complementary bidding: It is also known as cover bidding or courtesy bidding. It involves a situation where some of the bidders bid an amount which is too high or contains unacceptable conditions. Thus, in essence, cover bidding might give the impression of competitive bidding. In reality, suppliers agree to submit symbolic bids that are unreasonably high to succeed.

Bid suppression occurs where some of the conspirators agree not to submit a bid so that another conspirator can successfully win the contract.

Bid rotation occurs where the bidders take turns being the designated successful bidder, for example, each conspirator is designated to be the successful bidder on certain contracts, with conspirators designated to win other contracts. This is a form of market allocation, where the conspirators allocate or apportion markets, products, customers or geographic territories among themselves, so that each will get a “fair share” of the total business, without having to truly compete with the others for that business.

It has been seen generally that the above discussed forms of bid-rigging are not mutually exclusive of one another. One can see two or more of these practices occurring at the same time in a tender process. For example, if one member of the bidding ring is designated to win a particular contract, that bidder’s conspirators could avoid winning either by not bidding (which will be bid suppression), or by submitting a high bid (which implies cover bidding).

Bid Rigging Consider a situation where two firms X and Y bid for supplying products to a government department which has floated a tender for the same. In a competitive scenario, both the firms X and Y will submitcompeting bids. Later on, these firms decide together that Firm Y will submit a bid superior to Firm X’s and that if Firm Y is awarded the government tender, it will subcontract part of the work to Firm X. This conduct of determining the winner before the competitive process of bidding will be illegal under competition law because Firm X and Firm Y have agreed not to compete for the tender, thereby hampering competition. Here, both the firms are colluding and if successful will gain extra illegal profits at the expense of the government department

d. Output limitation

There can be a scenario where competitors agree to restrict and control the production thereby controlling the supply in the market. Output restrictions can take place through various forms including agreements on production volumes and agreements on sales volumes. The objective of controlling and limiting supplies is to create scarcity in the market and subsequently raise prices in the market. Such output restriction agreements lead to dead weight loss in the society.For example, in a US Lysine Cartel caseiii, five competing Lysine producers met and allocated the annual ‘sales volume’ quotas among themselves, they acknowledged the provision as being of ‘vital importance to overall scheme to control the industry.

3. Cartels: Entering the Egregious Zone

A cartel can be described as a mutual agreement which can be written or oral or oral aimed at regulating trade terms and conditions between buyers and sellers. Put simply, a cartel is an agreement between competitors not to compete with each other. India recognised cartelisation as a crime against the public as early as in 400 BC. Kautilay in his treatise ‘Arthashastra’ visualised price fixing and cartels like situations in the market and thus prescribed standards and punishments for dealing with traders indulging in cartels. From the writings in Arthashastra, it appears that traders cannot be trusted as they have a propensity to form cartels to fix prices and make excessive profits as also to deal in stolen property. Arthashastra prescribed heavy fines to discourage such offences by traders and with a view to protect consumers.Adam Smith viewed cartels with a tone of sarcasm as:

People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty and justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessaryiv.

The 1998 OECD Recommendation proclaimed that cartels are “the most egregious violations of competition lawv .” Thus, cartels are considered as most pernicious form of anticompetitive activities and cartels exist at national and international level also. Cartels harm consumers, businesses and the economy by increasing prices, reducing choice and distorting innovation processes. Thus, businesses forming cartels achieve greater profits for less effort to the detriment of consumers and the economy as a whole.

The definition of hard core cartel as given by OECD is: ‘an anticompetitive agreement, anticompetitive concerted practice or anticompetitive arrangement by companies to fix prices, make rigged bids (collusive tenders), establish output restrictions or quotas or share or divide markets by allocating customers, suppliers, territories, or lines of commerce… the most egregious violations of competition law’vi.

At its core, a cartel is an agreement between competitors not to compete with each other. Thus, the three common components of a cartel are: an agreement; between competitors; to restrict competition. Cartel members may agree on such matters as price fixing, total industry output, market shares, allocation of customers, allocation of territories, bid rigging, establishment of common sales agencies, and the division of profits or a combination of these. Generally it has been seen that the members of a cartel try to conceal their activities to avoid detection. Usually cartels function in secrecy and one can see ‘quiet life agreements’ in cartel cycles, which implies that cartels become passive for agreed time to avoid detection. It has also been seen that continuation of cartels is ensured through retaliation threats. In such a case, the cartel members retaliate through temporary price cuts to take business away from the cheating member. Compensation scheme is also one of the methods which the cartel members undertake in order to discourage cheating by the cartel members. Thus, if a member of a cartel is found to have sold more than the agreed volume, then that cheating member has to compensate the other members for the loss caused.

The regulation of cartel activity has become the priority for competition authorities worldwide. An international cartel is said to exist, when not all of the enterprises in a cartel are based in the same country or when the cartel affects markets of more than one country.

International Vitamins Cartel Leading producers of vitamins including Roche AG and BASF of Germany, Rhone-Poulenc of France, Takeda Chemical of Japan formed a cartel dividing up the world market and price fixing for different types of vitamins during the 1990s. The cartel operated for over 10 years and later prosecuted with the help of Rhone-Poulenc which defected from cartel and cooperated with US authorities. Roche paid fines of US $ 500 million and total fine collected exceeded US $ 1 billion in the US alone. The overcharges paid by 90 countries importing vitamins were estimated to the tune of US $ 2700 million during the 1990s. (Source: Clarke andEvenett, 2003)

4.Market Structure Facilitating Collusion

Market conditions play an important role in formation of stable cartels. Oligopolistic market structure characterised by a small number of sellers and homogeneous products is the market structure where cartels can emerge and operate easily. It can be said that through actions such as restricting industry output and fixing prices in order to earn higher profits, cartel behaviour looks akin to that of a monopoly structure. Cartel activities are more likely to be successful in oligopolistic markets having small number of producers and sellers. Thus, such oligopolistic market structure makes those players easy to coordinate and collude. Examples include industries related to cement, tyre and flour. Some of the conditions that are conducive to cartelisation are:

a.high concentration in an industry implies lesser number of competitors which is more favourable to collusion

b.high entry and exit barriers make the market players to collude more as there will be less threats to new entrants

c.firms collectively enjoying a higher market share are likely to collude easily

d.more collusion in case of homogeneous products

e.similar production costs

f.stable demand and easily availability of prices of rivals

g. dependence of the consumers on the product is high

h.history of collusion in the industry

i. active trade association acting as a cartel facilitator

5.Why Cartels are Bad

Cartels have been described as ‘cancers on the open market economy’vii and the supreme evil of antitrust’viii. Cartels which operate in secrecy raise price, restrict supply, inhibit innovation, and result in artificially-concentrated markets, waste, inefficiency and distortions in prices. Generally it has been seen that the higher prices of the goods and services due to cartelisation force some buyers to either purchase lower quantity and/or exit the market entirely. This is generally termed as the “lost volume effect”.

Another effect called ‘umbrella effect’ has also been seen in a cartelised market. In such a case, interestingly, consumers may be harmed even on the purchases they make from suppliers that did not participate in the cartel. The reason for such an effect can be devised from the basic demand and supply forces in the market. As the cartelists raise the prices of goods in the market, consumers decrease their demand from the cartelists and a correspondingly increased demand from the non-cartelists. This results in increased prices for consumers from all suppliers. Following reasons clearly depict the ill effects of the cartels:

• Cartels lead to increase in prices of goods and services for consumers
• Increase in price of goods and materials which act as inputs for other businesses thereby raising capital costs across the supply chain
• reducing investment by blocking new industry entrants by creating entry barriers in markets thereby affecting economic growth and entrepreneurship
• lead to deadweight loss by locking up resources as cartels interfere with normal supply and demand forces and can effectively lock out other operators from access to resources and distribution channels
• the cartels members enjoy a ‘quiet life’, as they agree amongst themselves not to compete thereby impairing investments in product developmentand research and development activities.
• cartels can have market exiting effect on non-members in the market.
• bid rigging and other activities by member of cartels targeting the public tendering process can be a great burden on public exchequer

Standard of Proof

Generally, horizontal agreements are dealt more sternly than the vertical agreements as, prima facie, a horizontal agreement is more likely to affect competition than a vertical agreement. The presumption is that anticompetitive horizontal agreements do not serve any pro-competitive purposes and hence are per se illegal.Horizontal agreements are presumed to have adverse effect on competition. In many jurisdictions, hard core cartel conduct is per se illegal because of its pernicious effect on competition and lack of redeeming economic value. This provision of per se illegality is rooted in the provisions of the U.S. law and has a parallel in most of the modern legislations on the subjectix. This means that no argument can justify a cartel agreement and no proof of harm is required. Harm is presumed, because this type of agreement always raises prices and never provides any significant benefits to consumers.

The existence of a cartel may be proved by direct evidence, indirect (circumstantial) evidence, or a combination of both. Direct evidence includes written agreement among cartel members, statement of a cartel member who attended a meeting and reached an agreement with competitors, a memorandum written within a company to report a meeting with competitors where an agreement was reached, records of telephone conversations with competitors, an electronic mail conversation or a statement of a person who was approached by the cartel to join it. Generally, direct evidence is scarcely found.Cartel members tend to conceal their activities and agree orally instead of entering into an agreement. Circumstantial evidence may be useful in supporting direct evidence. It may also prove the existence of a cartel by itself, but it is important to be careful in interpreting indirect evidence.Finding evidence in cartel cases is tough and most of the times the investigation begins with a ‘smoking gun’ and has to end establishing a case knitting circumstantial evidences together to prove the existence of cartel.

There can be cases where coordinated behaviour of the companies may impede competition even without any explicit agreement. For instance, conscious price parallelism implies a practice whereby sellers in a given market raise their prices within a short time without any explicit agreement amongst each other. Some jurisdictions have adopted a “parallelism plus” approach in cases of price parallelism. This implies that the existence of “plus factors” beyond merely the firms’ parallel behaviour needs to be shown in order to prove the anticompetitive conduct.

In most of the jurisdictions horizontal agreements are presumed to have an adverse effect on competition.Due to this presumption, the focus of the competition authority is on proving the existence of the anticompetitive arrangement itself rather than demonstrating the anticompetitive impact of the cartel on the market.

As per ICN reportx, the fight against cartels is a legally and practically demanding task due to the following reasons:

a) Cartels are secretive about their illicit behaviour, and therefore agencies have to undertake great efforts to detect concealed cartels.

b) Competition authorities need extraordinary powers and skills to collect sufficient evidence to mount a viable case against sometimes uncooperative defendants.

c) In the cartel area competition authorities operate sophisticated leniency programmes to destabilise such conspiracies, which is practically difficult to implement.

d) The investigation of international cartels tests the limits of competition authority jurisdictional reach.

e) Last but not least, the growing trend to criminalise cartel behaviour obliges many agencies to work to a particularly high standard of procedure and proof.

It has been seen in many cases worldwide that cartel participants take active steps in concealing their activities. Thus the focus of the competition authority is to gather evidence to prove the cartel activity. Recently competition authorities are making use of improved technological evidence gathering techniques of IT forensics while making use of traditional methods like on-site searches, unannounced raids,seizureof records and taking of witness statements.

Lysine Cartel Amino Acid Lysine cartel is one of the landmark cases decided in the US. Two Japanese, two South Korean and one US company agreed not to compete on price.Price of lysine rose on account of collusion from 68 cents per month to 98 cents in 1990 and continued at that level until detection in 1995. Evidence collected by DOJ with the assistance of FBI included documents/ transcripts of secretly recorded conversations which was helpful in prosecution of the cartel participants. (Source: Connor, 2009)

7. Exemptions

It has been seen in many jurisdictions that some types of horizontal agreements are kept out of purview of application of competition law and thus are exempted. These exemptions are generally qualified and time bound. Exemptions are generally based on domestic policy objectives that differ from jurisdiction to jurisdiction and sometimes reflect historical conditions or perceptions in an economy. For example, some jurisdictions have specific exemptions for certain collective bargaining agreements, agricultural cooperatives, research and development activities, and under certain circumstances small or medium enterprises are also exempted. Here we will briefly discuss two types of exemptions.

6.1 Joint Ventures

It cannot be said that all horizontal agreements are anti-competitive. Horizontal cooperation amongst market players can lead to substantial economic benefits such as saving costs, sharing risks and sharing know-how. Generally, it has been seen that market players come together for joint research, development, production and distribution activities so as to enjoy the benefits of economies of scale and scope. Most joint ventures involve cooperation in one or more forms. Such forms include research and development, production, distribution, and sales and marketing. For instance two firms entering into joint venture for development of a new product. As such cooperation is aimed at collaboration and developing synergies and is not in the form of collusion to harm the consumers, thus is not prohibited under the competition law.

6.2 Export cartels

An export cartel is an agreement or arrangement between firms to charge a specified export price and/or to divide export markets.Export cartels are generally exempted from the purview of national competition laws provided they do not effect competition in the domestic market. The rationale for permitting export cartels is that it may facilitate cooperative penetration of foreign markets.

8. Detecting and Fighting Cartels

Competition authorities adopt a number of measures to detect and fight cartels generally following a carrot and stick approach. It has been seen that strong sanctions together with stricter enforcement measures for detecting and fighting cartel needs to be there. Further, this strict enforcement approach needs to be complemented with incentives for voluntary disclosure, timely cooperation and well-designed leniency programmes. Incentives such as proper leniency programmes have a destabilising effect on cartels. On the other hand heavy penalties work as deterrent. Put simply this approach can be called carrot and stick approach.

9.1 Leniency Schemes

Leniency Program (sometimes also called immunity or amnesty programme) comprises of a set of rules for granting reductions in penalties to firms or individuals involved in cartels, in exchange for discontinuing participation into the practice and for providing an active cooperation in the investigation of the enforcement authorities. Increasing number of agencies operate leniency programmes as a key tool to detect cartel infringements. The leniency scheme can be designed to induce member of a cartel to defect from the cartel agreement by making disclosure regarding the cartel activities. The party making disclosure can, however, be subject to directions of the competition authority so as to cooperate. In the later modules, the readers will learn about specific leniency programmes in EU, US and India. Leniency programs offer reduced penalties to cartel participants in exchange for cooperating with the enforcement authorities. Generally there is full reduction in penalties to the first leniency applicant. Table below summarises the comparative provisions in US, EU and Japan related to reduction in penalty to successive leniency applicants at two stages of investigation. . Generally full immunity is given to the first applicant and the immunity lessens later on. From the table it is clear that countries are devising well-structured leniency policies to fight the menace of cartels

9.2 Enforcement Measure and Investigating Techniques Competition authorities use varied tools for identification, detection, investigation and prosecution of the cartels. This includes conducting market enquiries, unannounced search and seizure including dawn raids, using IT forensics for evidence collection and soon.It is important to briefly note here that a trend of imposing criminal sanctions on cartels has also emerged internationally. For instance, UK in 2002 through the Enterprise Act introduced criminal sanctions for the cartels. Recent cartel cases have seen simultaneous raids in multiple jurisdictions and parallel investigations. Competition authorities recognise that detecting and punishing every cartel is challenging task. Generally it has been seen that different jurisdictions supplement and complement penalties with actions like imposing penalties on individuals in personal capacity, sentencing individuals to prison, disqualifying directors of guilty enterprises from appointment as director for a specified period, and publishing the order in the media thereby seriously damaging the reputation of guilty enterprises. Thus, the competition authorities try to devise a comprehensive strategy to fight cartels and international cooperation and convergence in this field of competition law has increased.

9. Summary

This module dealt with the regulation of horizontal agreements from the perspective of competition law. Horizontal agreements are agreements between the market players at the same level of interaction in the market and can have serious effects on competition. Imposingnaked restraints through practices including price fixing and market allocation is presumed to illegal. Cartels which are horizontal agreements are focus of competition authorities worldwide due to adverse effects caused by them on businesses, consumers and the economy. The module described various types of anticompetitive horizontal agreements and the anticompetitive effects such agreements generate. In light of anticompetitive effects of cartels across different economies and emergence of international cartels, it has been seen that in recent years competition authorities are devising new cartel enforcement and detection policies and international cooperation has increased manifold in this area.

References:-

1. Connor, John M., “Global Cartels Redux: The Amino Acid Lysine Antitrust Litigation
2. 1996” (2009), Available at: http://ssrn.com/abstract=1408070
3. Evenett, Simon J. and Levenstein, Margaret C. and Suslow, Valerie Y., International Cartel Enforcement: Lessons from the 1990s (February 21, 2002). World Bank Policy Research Working Paper No. 2680. Available at: http://ssrn.com/abstract=265741
4. Harrington, Joseph E. Jr., “How Do Cartels Operate?,” Foundations and Trends in Microeconomics, Volume 2, Issue 1, July 2006.
5. Harrington, Joseph E. Jr., “Behavioural Screens and the Detection of Cartels”, 2007
6. International Competition Network, Anti-Cartel Enforcement Manual (2010).
7. International Competition Network, Building Blocks for Effective Anti-Cartel Regimes, Defining Hard Core Cartel Conduct–Effective Institutions–Effective Penalties (2005).
8. Motta, Massimo, Competition Policy: Theory and Practice, Cambridge: Cambridge University Press, 2004
9. Organization for Economic Cooperation and Development (OECD), Recommendation of the Council Concerning Effective Action against Hard Core Cartels (adopted 25 March 1998).
10. United Nations Conference on Trade and Development, “The Use of Leniency Programmes as a Tool for the Enforcement of Competition Law Against Hard Core Cartels in Developing Countries”, August 2010