Buyer power effects on market concentration: variety and exclusion Lastly, EU legislation and the Commission have raised a concern regarding the effect of buyer

power leading to further concentration in the upstream and downstream markets due to the waterbed effect and in line with the countervailing power theory of Galbraith. For instance, this was explicitly recognized regarding aggregated public procurement by the Recital 59 of the Directive 2014/24 on Public Procurement.³⁴¹ Also, recently, the Commission has raised concerns regarding the pernicious buyer power effects on small and medium enterprises in the food-retailing sector, as these small retailers and suppliers may be foreclosed and squeezed out of the market due to the imposition of unfair commercial practices arising from a substantial difference in bargaining power.³⁴²

This negative effect on concentration due to the exercise of buyer power may take place in the upstream market as suppliers will look for strategies that increase their seller market power and negotiate terms and conditions that are more beneficial to their interest, neutralizing buyer bargaining power and making it more likely to merge or create commercial alliances. In the downstream market, if the powerful buyer passes on the bargaining benefits to end consumers in the form of lower retailing prices it will capture its competitor’s demand – and will increase it

340 Suggesting that bargaining power encourages setting up of quality control measures in the retail industry see:

Dobson and Chakraborty (2008), p. 344.

341“[h]owever, the aggregation and centralisation of purchases should be carefully monitored in order to avoid excessive concentration of purchasing power and collusion, and to preserve transparency and competition, as well as market access opportunities for SMEs.” Recital 59 Directive Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [2014] OJ L 94/65.

For a discussion of the concentration effect generated by aggregated purchasing in public procurement markets see:

Herrera Anchustegui (2015); Sánchez Graells and Herrera Anchustegui [2016], p. 140-142.

342 European Commission ‘Tackling Unfair Trading Practices in the Business-to-Business food supply chain’ (2014), p. 3.

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market shares – unless these (smaller or less efficient) competitors offer either similar prices and/or better quality goods. Increased market concentration implies fewer competitors that may or may not be more efficient, and consequently less variety of goods or services.³⁴³

A variety of similar concerns on the negative effects of buyer power on concentration and variety have been expressed by the US Federal Trade Commission in food retailing markets, pertaining to whenever the buyer acts as a gate-keeper,³⁴⁴ and as also discussed by Kirkwood regarding e-books.³⁴⁵ Furthermore, authors like Chen argue that buyer power, if exercised against a monopolist, will have a positive effect on reducing end consumer prices but will decrease further product diversity.³⁴⁶

In contrast with these negative views regarding buyer power impact and variety, recent literature shows that buyer/retailer bargaining power does not decrease goods/services variety or, if it does, not as much as supplier market power does.³⁴⁷ Gabrielsen and Johansen compare manufacturers in terms of selling market power and retailers with buyer market power and conclude that buyer power implies less exclusion and, therefore, allows for a greater variety of goods/services³⁴⁸ They conclude that authorities should restrain from restricting or eliminating bargaining power if concerned about product variety and price increase. Similarly, the former UK Office of Fair Trading held that the exercise of buyer power and its effects on variety are likely to be positive as

“where downstream competition is effective, markets would typically respond to consumer desires for more [or less] diversity.”³⁴⁹

The foregoing discussion leads to the question of whether competition policy ought to protect

“sufficient variety” and a “healthy amount” of market players in the upstream and downstream market at the expense of short and medium-term efficiency and lower consumer prices. This is an area of buyer power economics and competition policy that is still ripe for further research.

343 Office of Fair Trading, The Competitive Effects of Buyer Groups, para. 7.13.

344 European Commission (2001), p. 58.

345 The evidence presented, however, did not support that buyer power induced a lack of variety of titles sold by Amazon, see the discussion in: Kirkwood (2014).

346 Zhiqi Chen, ‘Monopoly and Product Diversity: The Role of Retailer Countervailing Power’ 04-19 Carleton Economic Papers (2004), p. 21-22.

347 Tommy Staahl Gabrielsen and Bjørn Olav Johansen, ‘Buyer Power and Exclusion in Vertically Related Markets’

38 International Journal of Industrial Organization (2015) 1; Office of Fair Trading, The Competitive Effects of Buyer Groups, para. 7.22-7.23. Cf this with the view of Chen who claims that manufacturer seller power reduces variety and that buyer bargaining power exacerbates this distortion in product diversity; thus retailer countervailing power is not an adequate solution to manufacturer selling power, in Chen ‘Monopoly and Product Diversity: The Role of Retailer Countervailing Power’ (2004).

348 Gabrielsen and Johansen (2015), p. 3.

349 Office of Fair Trading, The Competitive Effects of Buyer Groups, para. 7.23.

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3.7 Conclusions

In this chapter, I have analyzed the economics behind buyer power and discussed its direct and indirect welfare effects. I submit that buyer power is an umbrella term encompassing monopsony and bargaining power, different expressions of buyer power with different effects, making it an ambiguous concept. Furthermore, buyer power has a dual effect in competition. It will always impact the upstream conditions between rival buyers and suppliers, and it can additionally affect downstream conditions when the buyer competes as a retailer with other rival buyers, and also having an impact in end consumer prices and non-price competition. Therefore, any buyer power policy that focuses exclusively in upstream or downstream harm would be under-inclusive and run the risk of not fully capturing buyer power effects. Consequently, and as discussed through this research, buyer power analysis should adopt a dualistic approach to its upstream and downstream welfare effects, so as to fully capture buyer power effects and avoid risks of under enforcement while aiming at not over-enforcing EU competition rules.³⁵⁰

Monopsony power is always inefficient because fewer goods are purchased than otherwise would be the case in a competitive setting, generating an allocative efficiency loss and a profit transfer from suppliers to the buyer. This inefficient outcome holds even if monopsony power might have little or no impact on end consumer prices because the monopsonist lacks downstream market power. Furthermore, monopsony power almost always has negative efficiency effects in terms of indirect effects and non-price conditions: it reduces innovation, investment, erodes quality and tends to increase market concentration upstream. Therefore, regarding monopsony power cases, it will be very likely that a conduct that involves purchases withholding will restrict competition by object under Article 101 TFEU or by nature in cases of unilateral behavior.

In turn, the exercise of bargaining power tends to be welfare enhancing as it reduces input prices by neutralizing opposed supplier market power. Furthermore, the price reduction may be passed on to end consumers in the form of lower prices if there is sufficient competition where the buyer operates as a retailer.³⁵¹ Additionally, bargaining power may have positive non-price effects, such as in the case of spurring investment and innovation, promoting quality and quality control, and

350 For literature dealing with Type I and II errors in competition and antitrust law see, inter alia: Maarten Pieter Schinkel and Jan Tuinstra, ‘Imperfect Competition Law Enforcement’ CeNDEF Working Paper No 04-07 (2004) 1;

Monti, [2007], p. 16-18; T. Mäger and T. B. Paul, ‘The Interaction of Public and Private Enforcement – The Calculation and Reconciliation of Fines and Damages in Europe and Germany’ in K. Hüschelrath and H. Schweitzer (eds), Public and Private Enforcement of Competition Law in Europe: Legal and Economic Perspectives (Springer 2014), p. 77-104; David Lewis Chilling Competition, (http://www.comptrib.co.za/assets/Uploads/Speeches/lewis13.pdf).

351This is also Kirkwood’s view when stating that “the exercise of countervailing power (bargaining power) is frequently procompetitive, collusion (among sellers to eliminate it) should be allowed to offset it unless there is clear evidence of competitive harm” in Kirkwood (2014), p. 51. See also the views of Buttà and Pezzoli when stating

“[b]uyer power (meaning bargaining power) is generally beneficial for final consumers and might even boost the productivity of upstream suppliers” in Buttà and Pezzoli (2014), p. 173.

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limiting variety erosion from seller market power. However, bargaining power may also be exerted in an anti-competitive manner to exploit suppliers and exclude rivals buyers competing in the upstream and that, additionally but not necessarily, compete in the downstream market as retailers.

This ambiguous buyer power effect on welfare implies that competition law should steer away from an outdated and simplistic approach that sees buyer power cases as representations of monopsony power or only portraying the negative aspects of bargaining power. Also, it ought to recognize the largely benign effect of bargaining power and, therefore, apply a more lenient treatment than when compared to monopsony cases. This, however, does not imply that bargaining power cases should be outside the scope of competition law scrutiny.³⁵² Also, the lack of certainty makes difficult to offer a ‘shortcut’ in the form of a reliable framework to capture all cases of buyer power conducts. Even though these models have been proposed, they are difficult to apply due to the assumptions they are built on.³⁵³ Another problem with this type of guidance for cases is that theyare anchored on market structures and not conducts. The adoption of these form/structured based approaches to the application of the law may lead to the erroneous belief that what is forbidden is the existence of a ‘shape’ or type of market power distribution, when instead what is forbidden is the abuse of market power through conducts.

As part of my contribution, I have analyzed the direct buyer power effects on prices and showed that, for both monopsony and bargaining power, whenever the buyer also enjoys substantial downstream market power, the risks of anti-competitive harm increase under the hourglass shape theory.³⁵⁴ This happens because if the buyer has no competitive pressure to pass on the price reductions obtained due to its buyer power, it will keep the supra-competitive profits that have been transferred from the supplier while it also employs its market power downstream vis-à-vis end consumers.

Regarding indirect buyer power effects, the picture is less clear as there is not complete consensus as to whether buyer (bargaining) power has a positive effect regarding price for other buyers and suppliers (the waterbed effect), investment, quality or market concentration. This blurry picture makes it difficult to make generalizations that can easily be extrapolated to cases and used as rules of thumb in buyer power cases. Therefore, a cautious approach to buyer power effects (particularly bargaining power) should be adopted by analyzing the circumstances of the case and looking at the competition effects of the purchasing conduct, in particular when dealing with bargaining power cases.

352 Also sharing this view see: van Doorn.

353 European Commission and others (2000); Chen ‘Buyer power: Economic Theory and Antitrust Policy’ (2007).

354 This is also the opinion of Korah and O’Sullivan when stating that “[i]f the emphasis is on protecting consumers, there should be concern only when there is insufficient competition downstream to ensure that the benefits of buyer power are passed on to buyers”, in Korah and O'Sullivan, [2002], p. 53.

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Summing up, an understanding of buyer power economics and an awareness of the limitations and lack of consensus in the economic literature regarding some of its effects is a necessary first step towards the legal analysis of buying conducts in line with the economically informed legal analysis adopted in this dissertation. Furthermore, this chapter is of importance as in my analysis of the legal regulation as at times economic-based discussions are presented, which are based on these findings and which allow the reader to understand why certain arguments and positions are adopted.

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