competition law and learning from the tuffins case edward parker secretary & head of governance...
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Competition law and learning from the Tuffins Case
Edward Parker
Secretary & Head of Governance
The Midcounties Co-operative
7 November 2014
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Tuffins
“The OFT also notes the parties’
submission that the one-stop
store has a wide and eclectic
product offering including both
food and non-food items (such
as gardening products and
parrots).”
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Some OFT jargon
• Substantial lessening of competition
• Substantial part of the UK
• Turnover test
• Share of supply test
• Jurisdiction
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The OFT is . . . .
• cautious
• “On a cautious basis the OFT considers it appropriate to . . . .
• “The OFT has also, on a cautious basis . . . .
• “The OFT’s estimates reflect an approach that is more cautious . . . .
• “The OFT considered it appropriate on a cautious basis . . . .
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The OFT needs . . . .
• evidence
• “As the OFT has not received compelling evidence in this case . . . .
• “In the absence of sufficient evidence to suggest . . . .
• “The OFT considered the evidence available to it . . . .
• “There was insufficient evidence to conclude . . . .
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The OFT likes . . . .
• process
• Stage 1
• “identifying local overlap areas and conducting an initial filtering exercise”
• Stage 2
• “estimating diversion ratios and asymmetric illustrative price rises”
• Stage 3
• “assessment of other factors”
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. . . . so it all gets very complicated
• “Please provide alternative linear and isoelastic IPR estimates using both Mb and Dba estimates from the (b) store which has the highest Dba to the focal (a) store (we would expect this to be the (b) store closest to the focal store), all respondents included but excluding ‘would not have purchased the items’ responses.
OFT to Midcounties
• “We have to consider the ‘counterfactual’ – i.e. what would have happened if what has happened hadn’t happened . . . . !!”
Midcounties Secretary to Midcounties CEO
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. . . . even more so because of the ‘c’ word
Competition law and Co-operatives
Co-operatives confuse regulators . . . .
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. . . . . which causes contradictions
• Do societies compete?
• OFT decisions:
• United Yes
• Somerfield No
• Lothian & Borders Yes . . . . and . . . . . No
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In the case of Midcounties and Tuffins . . . .
“The OFT considers that the parties
have provided evidence
that the level of rivalry that exists between
Midcounties and CGL is likely to be higher
than at the time of the CGL/Somerfield
assessment in 2008.”
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What evidence?
Oxera OFT
Different prices, different ranges, different opening hours, different local sourcing, different formats, different cost base, different member programme, different dividend rate, different Board, different management
Similar prices, similar ranges, same buying terms, same promotions, influence at CGL, influence at CRTG
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Putting it all together
• Complex, expensive, time consuming
• Evidence required
• Disposal of 4 stores
• Partially effective competitors
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The final word . . . . .
“The OFT clarifies that whilst
there is a parrot at the
Churchstoke store, the store
does not sell parrots.”