Boosting Investment and well-functioning markets in Namibia through competition policy Tania Begazo Senior Economist Trade & Competitiveness Global Practice Competition Policy Cluster September 2016 Positive effects of promoting competition Boosting shared prosperity and welfare of low income households Consumers: • Mexico: lack of competition costs the poorest households 20% more than the richest. • Dev’ economies: Cartels raise consumer prices by 49% on average. Small Producers: • Sierra Leone: Entry in manufacturing of ice led to a 19 pp increase in provision of credit to fishermen • India: Collusion in wheat auctions depresses farmer prices Jobs • Egypt: Entry of politically connected firms reduces employment growth by 1.4 pp annually Enhance innovation, productivity, competitiveness • India: Higher total factor productivity at the state level associated with more pro-competition regulatory environment. • India/S.Africa: reform of product market regulations would increase 0.4% growth of GDP per capita. • Japan, Vietnam: Industries with less market concentration, more market share instability and more perceived competition export more • OECD countries: pro-competition market regulation stimulates trade and reduces input costs for exporters 2 Competitive and efficient input and output markets contribute to competitiveness and leverage impact on growth and shared prosperity Output Inputs Non-tradable e.g. wholesale, mobile/broadband telecommunications, courier, construction, sanitation/sewage, e.g. health services (except telemedicine), domestic travel/tourism services, retail Firms Welfare, equality Families SMEs Tradable * Services, e.g. call centers, banking, business processing Goods, e.g. agribusiness inputs, intermediate products e.g. final manufactured or agricultural products Transport (Air, maritime, road), logistics, telecoms Competitiveness & Access to int’l markets Jobs Consumption goods: food, FMCG, pharmaceuticals Inputs: Fertilizers, construction materials, equipment, etc. Access to imported products (regional, int’l trade) 3 *Definition based only on Mode 1/cross-border trade: “producing services in one country to be consumed in another” (Molinuevo, Saez, 2014) How to enable and promote competition? Policies, laws and government interventions that ensure that competition in the marketplace is not restricted in such way as to reduce economic welfare. OPEN MARKETS AND REMOVE ANTICOMPETITIVE SECTORAL REGULATION EFFECTIVELY ENFORCE COMPETITION LAW AND RULES ECONOMY WIDE Remove restrictions to the number of firms, Tackle cartel agreements that raise the costs of statutory monopolies or bans towards private key inputs and final products investment, restrictions on consumer choice Eliminate controls on prices and other market Prevent anticompetitive mergers variables that increase business risk Guarantee a level playing field and non- Strengthen antitrust framework discriminatory treatment against certain firms anticompetitive conduct to combat Control state aid to avoid favoritism and ensure competitive neutrality MARKET 4 Competition Policy Assessment for Namibia Objective: Identify actions to improve economic regulation - procompetition government interventions - so that private sector participation delivers larger benefits to the economy: consumer welfare, productivity, competitiveness, investment, jobs Scope: • Economy-wide factors: government participation in markets, regulatory system that integrates competition principles, antitrust enforcement • Sector-specific factors: rules that impede entry and increase dominance, discriminate between firms and distort the level playing field, increase the costs of competing or facilitate collusion Components: • General assessment of the regulatory framework across the economy and in key input sectors (tool: Product market regulations (PMR) indicators and WBG Markets and Competition Policy Assessment Tool) • Assessment of the competition law (tool: WBG Competition policy checklist) Note: Assessment for Namibia conducted in 2014. Some reforms have already taken place after the assessment (.e.g. public procurement) The framework for analysis 6 Tools used for the assessment: PMR OECD PMR (Product Market Regulations) indicators capture “on-the-books” characteristics of economic and administrative regulations that affect product markets • Economic regulations: constraints and incentive mechanisms on market access, use of inputs, output choices, pricing, foreign investment. • Administrative regulation: means for communicating regulatory requirements to the public as well as compliance procedures to enter markets • Sectors: electricity, telecom, transport, professional ss, retail, water, gas. • Sub-indicators: State control (SOE, price controls), barriers to entrepreneurship (entry and access), barriers to trade and investment 7 • The PMR indicators allow researchers and policy-makers to have a first cut on the extent to which national rules encourage competition or distort markets. • The WBG has partnered with OECD to calculate PMR for additional developing economies (OECD PMR available for OECD countries (1998), BRICS and other European countries) • In Africa: Data for Kenya, Rwanda (2014) and South Africa (2008, 2013) • In LAC: 10+ countries in addition to Mx and Br • Indicators in process to be calculated in Egypt, Philippines Overview of PMR components 8 Markets and Competition Policy Assessment – Government interventions and effects on competition Any government body can issue rules or adopt decisions that affect competition dynamics Governments can affect market outcomes not only through traditional regulatory instruments but also through direct participation as buyer and as a provider of goods and services. Private agents can also restrict competition through co- regulation or self-regulation schemes. How rules are implemented can have different effects on competition (not only on the books) Authorities/agents that can affect competition Congress Ministries Cross-cutting authorities (e.g. Investment, Public Procurement, Competition) Sector regulators Self and co-regulation schemes Types of market interventions/instruments Cross-cutting and sector regulation State aid/incentives/subsidies Potential anticompetitive effects of rules Rules that reinforce dominance or limit entry Direct participation in the market: SOE Rules that are conducive to collusive outcomes or increase costs to compete in the market Privatization/ concession schemes, PPP Rules that discriminate and protect vested interests Public procurement rules Findings in Namibia Do government policies and regulations enable competition in key markets? 10 Government involvement in markets Government commercial activities in sectors where private sector seems viable based on experience in other countries (e.g., fishing, tourism, mobile telecom services) . In many input markets (infrastructure), SOE hold between 90-100% of the market Accumulation of commercial and regulatory functions by SOEs can create regulatory risks, as well as limited independence of market regulators. E.g. in water transport, Namport both port operator and regulator, issues in electricity and competition law enforcement. Regulatory framework limiting access for private sector. E.g. in tourism, Namibia Wildlife Resorts (NWR) as main operator in protected areas State support measures that can distort markets (in addition to fiscal effects). E.g. SOEs receive recurrent subsidies, state guarantees and loans The Namibian Government controls at least 1 firm (SOE) in 15 sectors… National, state or provincial governments control at least one firm in the sector Electricity generation, import, transmission, distribution and supply Gas generation, import, transmission, distribution and supply Telecommunication fixed line, mobile and internet services Post basic and courier services Railways transport Air transport Operation of air transportation infrastructure Operation of water transportation infrastructure Operation of road infrastructure Water collection, treatment and supply Manufacture of tobacco products Manufacture of refined petroleum products Manufacture of basic metals Manufacture of fabricated metal products, machinery and equipment Building and repairing of ships and boats Manufacture of railway and tramway locomotives and rolling stock Manufacture of aircraft and spacecraft Construction Wholesale trade, incl. of motor vehicles Retail trade, incl. of motor vehicles Accommodation, food and beverage service activities Other urban, suburban and interurban passenger transport Financial service activities, except central banking, insurance and pension funding Insurance, reinsurance and pension funding Other business activities Human health activities Motion picture distribution and projection TOTAL Source: 2013 survey for Namibia that follows the OECD PMR template. Yes X No X X X X X X X X X X X X X X X X X X X X X X X X X 15 X 12 …while the top 5 OECD governments control firms in 8 sectors, on average 25 20 15 10 5 United Kingdom Estonia Netherlands Ireland Denmark Japan Korea United States Brazil Bulgaria Canada Germany Iceland Slovak Republic Chile Austria Belgium Portugal OECD Average Australia Finland New Zealand Czech Republic Greece Namibia Hungary Israel Switzerland Slovenia South Africa Russia France Italy Spain Sweden Philippines Tunisia Norway Indonesia China 0 Source: 2013 survey for Namibia that follows the OECD PMR template; 2013 OECD PMR database, with the exception of Italy, Japan, Korea, Luxembourg, Mexico, Poland, Turkey, Brazil and United States (from 2008 as of July 2013); 2012 PMR survey for Tunisia and 2013 PMR survey for the Philippines. Recurrent Government support measures: subsidies, financial guarantees and government loans The government provides subsidies, grants and other transfers • aimed at attracting FDI, promoting SME development and exports, encouraging agriculture development • on average, amounting to 3.6% of GDP during 2007-2012 However, SOEs are the beneficiaries of a significant share of support measures: • Recurrent subsidies for Development Bank of Namibia, Air Namibia, NamPower, Agribank and NamWater • Almost 90% of all guarantees (during 2006-2011) distributed among several SOEs (Road Fund Administration, Agriculture Bank of Namibia, and Air Namibia) • Few SOEs also account for around 30% of the loans granted Currently, lack of specific criteria for designing measures that minimize distortions on competition and achieve policy results, and limited monitoring of the effects of the state support measures on competition conditions and goals Steps in Minimizing Distortions to Competition Associated with State Support No Wrong instrument Yes Is it thanks to the measure? (incentive effect) Does the measure meet intended objective? What market failure does it address? How to assess it 1. Collect data on beneficiaries, way measure was selected, amount of aid, etc. 2. Evaluation methods • Quantitative methods build counterfactual • Qualitative method as support No Wrong instrument Yes Does it produce effects that distort competition? No Yes • Does it limit number of undertakings? • Barriers to entry or exit • Licenses, exclusive permission/rights • Does it constraint firms ability to compete? • Price controls • Constraints to market access • Does it decrease incentives to compete? • Grants dominant position to undertaking? • Asymmetry of benefits? Right instrument No Wrong instrument Yes Are there alternatives? Are restrictions justified? Does it comply with the following principles? • Proportionality • Necessity • Transparency • Predictability (minimize distortions) No Right instrument Yes Full assessment of alternatives Important to analyze costs and benefits of state support. Find measures that minimize distortions on competition conditions. Regulations that facilitate coordinated behavior and set prices Prices generally set free in Namibia • Exceptions include regulated prices for professional services, few food staples, utilities and gasoline Still, self-regulation and state regulation of professions potentially creating anti-competitive effects that do not benefit or protect consumers Regulations of professional service bodies: • setting “recommended” minimum and maximum prices for all services provided by lawyers. Government regulations: • setting binding minimum prices for engineers and binding minimum/maximum prices for architects • Other limitations in the professional services market: restrictions on legal form, sharing premises Competition policy reforms for professional services are consistently linked to large economic benefits through boosting productivity Evidence pointing to increases in productivity, impact on growth in downstream, service-dependent industries and significant cost savings International practice reflecting increasing liberalization of professional services (e.g. in the EU space; China) The majority of OECD countries have no price regulation for these professional services at all, • although some jurisdictions do publish non-binding price recommendations Source: World Bank based on OECD Product Market Regulation Database, 2013 Barriers to entrepreneurship may be streamlined and access to certain markets may be improved Well established communication strategy on regulations for business creation But company registration: lengthy and cumbersome (dropped from 154 to 164 in DB2016) • taking 10 procedures and 66 days on average. • slowed down by an excessive number of due-diligence procedures, lack of computerized records and a slow process of checking the uniqueness of the company name In the air transport, provision of certain types of air transport services hindered by frequency restrictions in the existing bilateral air service agreements (BASA) In the road transport, limits to foreign trucking services, delays and limitations for cabotage and backhauling. In telecom, rules on access to essential infrastructure, rules to access essential resources (spectrum). The government as a buyer affects competition in markets Previous public procurement framework: limited elements to ensure procompetitive tenders. New 2015 framework incorporates more pro-competition tools but preferential treatment to certain players is still allowed. granting of a large number of exemptions from public tenders: contract amounts given through tender exemptions - two or three times more than those given through tender; all tender exemptions are justified to relate to emergency procurements. lack of clear and transparent procedures to grant such exemptions – Regulations are needed New framework recognizes competition as important principle and increases transparency Allows for electronic tenders Mentions explicitly competition contraventions (bid rigging, price fixing) Enhanced cooperation between public procurement agency and the NaCC to eliminate overcharges that affect fiscal accounts (spillover effects on social policies and infrastructure development, SOE) Cartel overcharges that could be prevented Distribution of cartel episodes and overcharges determined by competition authorities by region 60 180 160 48.4 50 140 40 33 % 32.2 30 20 120 36.8 32.7 25.1 25 100 80 20 17.7 60 17.2 40 10 20 0 0 N America EU Median Western Europe Asia & Oceania Mean No of Episodes (Right Axis) Africa, Latin America, E. Europe Overcharges Median: 16 – 23% Mean: 16 - 49% Source: Elaboration on data from Connor, Price-Fixing Overcharges 3rd Edition, 2014 (485 decisions) 20 Detected cartels in public procurement: Construction (UK, SA, NL), pharmaceuticals and medical supplies (Mx, Pe, Col, Chi, NL) Trade and Competitiveness Global Practice – Competition Policy Team Infant industry protection Covered sectors such as pasta, poultry, milk, cement. Some protection measures have expired and others have been extended (pasta, cement) Cost and effects should be systematically monitored (e.g. effects on consumers versus effects on firms) Increasing the effectiveness of antitrust law (1) Scope of the law • Is competition the only objective? How to balance different objectives? • Are exemptions to the law in place? Anticompetitive practices • Can hard-core cartels be exempted? • Are investigative powers adequate for deterring cartels? How are they implemented? • Are fines according to gravity of anticompetitive behavior? • Are other instruments to stop/deter anticompetitive behavior in place? 22 Leniency? Settlements? • More sectors, markets,undertakings exempted -> less effective, distortions to level playing field • Namibia: certain sectors, definition of undertaking (SOE), possibility of exempting other sectors/firms • Central elements in any anticartel enforcement program: sophisticated detection + incentives + enhanced sanctions = effective deterrence. • Hard-core cartels considered per se illegal but ability to analyze effects in other cases • Namibia: No leniency, fines decided by Court & no specific methodology, use of available tools (raids) Increasing the effectiveness of antitrust law (2) Mergers • Which transactions are evaluated? • Are there thresholds in place? Are these quantitative? Are these adequate given the size of the economy? • Are efficiencies analyzed? • What are the remedies that can be imposed? • What is the procedure? Due process & confidentiality Advocacy powers • Has the Competition Authority the mandate to issue opinions on government policies and regulations? • Are legal opinions from the Agency binding/ non- binding? • Are there cooperation agreements with agencies in force? • Tackle only potentially harmful mergers. • Use resources efficiently • Minimize unnecessary cost for doing business Proper definition of merger Notification threshold Two-phase procedure • Power to access information for market assessments • Power to influence regulation. • Champion competition reforms • Minimize anticompetitive regulation Actions to enable competition in Namibian markets 24 Policy Options – State Support Measures Short-term options • Consolidate an inventory of all state support measure, including objectives, legal instruments, value and beneficiaries. • Apply good practice criteria when granting state support to firms • Balance competition policy objective with other objectives stemming from industrial and black empowerment policies Medium-term options • Consider developing a framework to control state support measures that could include: (i) relevant criteria for identifying support measures; (ii) application of exemption rules in specific sectors; (iii) assessment of prohibited measures and their potential impact on competition; and (iv) definition of implementation procedure and monitoring. Expected effects • Minimize distortive effects of state support measures on competition conditions • Full transparency and accountability in the use of public funds • Public sector savings Implementing body: Ministry of Finance, NaCC,,all other granting ministries and bodies Policy Options – Competitive Neutrality Short-term options • Ensure full applicability of the competition act to SOEs Medium-term options • Consider a regulatory framework (i) with the same set of rules for public and private enterprises • Consider allowing local institutional investors to buy minority equity stakes in some of the infrastructure SOEs Expected effects • A level playing field for SOEs and private enterprises Implementing body: Government Ministries, NaCC (reform advocate) Policy Options – Public Procurement Short-term options • Issue public procurement rules to limit exemptions to competitive processes and provide guidance on preferential treatment Medium-term options • Sign an MoU between the procurement agency/ies and the Namibia Competition Commission (NaCC) to promote competition Expected effects • Enhanced competition in public tenders and less bid rigging practices • Public sector savings Implementing body: Public Procurement agency, all relevant government ministries, NaCC Policy Options – Business Entry Short-term options • Promote the streamlining of procedures on registration of businesses, particularly by improving the process of checking the uniqueness of the company name and putting in place an online system allowing to do the search and reservation of names for companies Expected effects • Easy entry for potential investors • Reduced administrative burdens on entrepreneurs Implementing body: MTI and all relevant bodies, NaCC (reform advocate) Policy Options – Infant Industry Protection Short-term options • Ensure that additional regulatory restrictions that stifle the competitive conditions in the IIP sectors are not introduced • Ensure that (i) firms operating in the input markets that serve the IIP sectors do not engage in anticompetitive behavior and (ii) IIPprotected firms do not engage in anticompetitive behavior in the market Medium-term options • Monitor that the costs of IIP do not permanently outweigh the benefits for consumers Expected effects • Prevent additional anticompetitive regulation and practices in the IIP sectors • Reduce unnecessary operational costs of the IIP-protected firms to enable them to become more competitive Implementing body: MTI, NaCC, other relevant government ministries and bodies Constraints and Policy Options in key sectors – Electricity Institutional setup that affect regulatory risk: ECB, Ministry of Energy, vertically integrated SOE NamPower’s generation and transmission functions not separated (in the majority of OECD countries an ownership separation of these segments exists) Short-term options •Discuss ring- fencing NamPower generation and transmission functions in separate business units Medium-term options •Once entry in the generation segment is fully ensured, consideration may be given to introducing rules that discourage discriminatory/preferential treatment of players Expected effects •Increase access to electricity for corporate and individual consumers •Create a level playing field Implementing body: Ministry of Mines and Energy, ECB, NaCC (reform advocate) Constraints and Policy Options in key sectors – Maritime Transport ♦ Accumulation of operating and regulatory functions ♦ may potentially shield SOEs from competitive pressure or regulation that simulates competition ♦ Namport is both the port operator and regulator Medium-term options • Discuss a review of and consider the separation of the Namport regulatory responsibilities from its development and operations functions Expected effects • Eliminate potential conflict of interest • Stimulate entry of new port service providers Implementing body: Ministry of Works and Transport, Namport, NaCC (reform advocate) Constraints and Policy Options in key sectors – Telecom ♦ Complete or majority Government ownership in both fixed and mobile operators ♦ More access to spectrum and introduction of MVNO needed ♦ Conflicting decisions (especially on mergers in the telecom sector) between NaCC and the Communications Regulatory Authority of Namibia (CRAN Short-term options • Promote the adoption of an action plan for cooperation between NaCC and CRAN based on the existing MOU to strengthen cooperation • Issue rules to facilitate entry in telecom (infra sharing, access) •… Implementing body: Medium-term options • Promote the introduction of “mobile virtual network operators” (MVNO) • Promote the inclusion of competition principles during spectrum allocation Expected effects • Full transparency for the telecom operators • Increased innovation and price competition CRAN, Ministry of Information and Communication Technology, NaCC (collaboration) Constraints and Policy Options – Air Transport ♦ Provision of certain types of air transport services hindered by frequency restrictions in the existing bilateral air service agreements (BASA) Short-term options • Discuss the review of any frequency restrictions in the BASA to allow carriers to expand certain air services. Expected effects • Increased offering of non-scheduled flights and other types of services Implementing body: Ministry of Works and Transport, NaCC (reform advocate) Constraints and Policy Options in key sectors – Road Transport ♦ Lack of a level playing field and unnecessary barriers to entry ♦ limits for foreign trucks, ♦ delays and limitations of cabotage and backhauling application processes Short-term options • Support the streamlining of the application process for cabotage and backhaul transportation to facilitate road transport service operations Medium-term options • Promote the review of the process for issuing truck permits for certain transport service providers Expected effects • Easy entry and operations • Reduced operation costs for transport service providers and final consumers Implementing body: Ministry of Works Transport, NaCC (reform advocate) Constraints and Policy Options – Tourism Regulatory framework limiting access for private sector protected areas of Namibia assigned through a concession to Namibia Wildlife Resorts (NWR), which is the sole operator. entry barriers to the detriment of private operators Medium-term options • Discuss instruments (such as concessions) that would open access to the private operators to diversify service offering at competitive prices for tourists Expected effects • Stimulate service offering at efficient prices Implementing body: Ministry of Tourism, NWR, NaCC (reform advocate) Constraints and Policy Options – Professional Services Regulations of professional service bodies: setting “recommended” minimum and maximum prices for all services provided by lawyers. Government regulations: setting binding minimum prices for engineers and binding minimum/maximum prices for architects Medium-term options • Promote the elimination of minimum and maximum prices for lawyers, minimum and maximum prices for architects, and minimum prices for engineers Expected effects • Enhanced service efficiency and lower the costs for consumers Implementing body: Ministry of Justice, Professional associations, NaCC (reform advocate) Potential benefits of addressing regulatory constraints 37 What would be the benefits of eliminating restrictions on competition? Example: Labor productivity in Tunisia • • Drop of 5 pp in price-cost margins associated with additional LP growth of 5% / yr Large potential gains in key service sectors (transport, professional services) and agriculture Expected gains in labor productivity following a 5% Examples • Road transport services: restrictions on foreign participation; restrictive entry requirements and/or discriminatory fiscal treatment in transportation for third parties • Agriculture: lack of transparent implementation of (a) import licenses for agricultural inputs for seeds, fertilizers, and pesticides, (b) licenses for the commercialization of these inputs at wholesale and retail level + presence of marketing boards (e.g. cereals, oil, etc.) 38 decrease in PCMs relative to the 7-year mean by subsector Source: World Bank (2014) The Unfinished Revolution: Bringing Opportunity, Good Jobs and Greater Wealth to All Tunisians (Chapter 2) What would be the benefits of eliminating restrictions on competition? Example: GDP growth in South Africa, Kenya OECD WBG Product Market Regulation Data Higher values are associated with regulations more restrictive to competition 3.5 3.0 2.5 • Protection of incumbents in networks sectors (e.g. electricity, telecom, railways, aviation) • Weak governance of SOE that affects competitive neutrality and crowds out private investment • Discrimination against foreigners (e.g. public procurement, professionals, ownership restrictions) • Price controls and minimum prices Kenya: Removal of restrictive product market regulations in service sectors (professional services, telecom) -> increase of GDP growth by 0.39 pp (USD 218 million in the first year) South Africa: Improved regulations in professional services -> increase of GDP growth by 0.4-0.5 pp 2.0 1.5 1.0 0.5 Netherlands United Kingdom United States Austria Denmark New Zealand Italy Slovak Republic Australia Estonia Finland Germany Portugal Hungary Belgium Czech Republic Japan Canada Spain Ireland Luxembourg Norway France Iceland Switzerland Chile Lithuania Sweden Malta Bulgaria Latvia Poland Cyprus Romania Slovenia Greece Colombia Korea Mexico Peru El Salvador Nicaragua Croatia Israel South Africa Russia Rwanda Dominican Rep. Jamaica Indonesia Costa Rica Turkey Brazil Kenya China Honduras India 0.0 High-income countries High middle income countries Low middle income and low income countries 39 Note: Data for 2013, except for United States from 2008 as of Aug 2014, and Kenya and Rwanda for 2014. Sources: OECD, Product Market Regulation Database; OECD-WBG, Product market regulation indicators for LAC, Rwanda and Kenya What would be the benefits of eliminating restrictions on competition? Example: poverty alleviation in Kenya Eliminating overcharges of 20% in sugar and maize markets (e.g. from potential anticompetitive practices facilitated by business associations, NTBs, government influence in markets) would increase real income and reduce poverty… Household expenditure share in maize Poverty by 1.8 pp Poorest decile gains 6.4 times more than the richest Household expenditure share in sugar Poverty by 1.5 pp Poorest decile gains 3.4 times more than the richest Referred in analysis of political economy in the agriculture sector. Captured in draft Kenya CEM 40 Source: KIHS 2005/2006. Argent and Begazo (2015) Concluding remarks 41 Competition policy can help Namibia achieve Vision 2030 and the goals of the National Development Plan Evaluating the costs and benefits of government interventions – considering market characteristics - is key to increase effectiveness and create the right incentives for private sector to contribute to Namibia’s development All government agencies and NaCC have a shared responsibility in this area Trade and Competitiveness Global Practice – Competition Policy Team 42
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