Market studies and other market analysis tools continue to be important for competition authorities. From short inquiries asking for input from market participants, through to in-depth multi-year analyses, a range of activities could be described as market studies, varying in scale, scope and motivations. Whereas traditional competition law tends to focus on preserving competition by penalising anti-competitive conduct of dominant firms or firm acquisitions, market studies and market analysis tools tend to reflect a desire to promote competition, acknowledging that not all hindrances to competition result from illegal firm conduct. To build on previous OECD work on market studies, this paper considers common and best practices regarding market studies by competition authorities.
The paper finds that while differences remain, there is significant convergence in the legal powers that different competition authorities possess regarding market studies, with most authorities able to conduct them and able to compel the provision of information. There are also common approaches to ensure that market studies remain proportionate and transparent tools, including through practices to identify the scope of studies at the beginning and to consult on findings with relevant stakeholders. While each study is unique, competition authorities broadly employ similar methodologies during market studies, most notably giving a prominent role to information gathered from market participants.
However, while useful tools, the paper notes that market studies are not without their limits and are not a substitute for competition enforcement. As advocacy tools, their impact often relies on others acting on them. Market studies can also impose costs on market participants and competition authorities themselves, so should be carefully selected and scoped. Given their importance, authorities should consider if it’s possible to conduct more ex-post assessments of market studies. Academic institutions and international organisations, such as the OECD, may be able to help close this gap.
The paper also considers market investigation tools, which mark a significant extension of market studies, providing competition authorities with remedial powers. While such tools and their usage are still relatively rare, they are attracting increasing levels of interest with several jurisdictions acquiring them recently and others expressing interest in doing so.
Finally, as with many areas of competition policy, the paper considers that co‑operation between competition authorities regarding market studies or other market analysis tools provides many benefits. There may be scope for greater collaboration between authorities in this regard, including potentially considering whether there is a greater role for joint studies in certain circumstances.