Quick reactions to the Z/Chevron decision

The decision is out and it's pretty much as outsiders would have picked (and I should add I'm an outsider, not having advised any of the parties involved) - the likelihood always was (at least for petrol stations) that it would be either a clearance with divestments, or a decline, and we've ended up with a split decision, a 3:1 majority for clearance with divestments (19 petrol stations and 1 truck-stop), with one vote for a decline.

We don't have the full written decision yet, but the press release says the sticking point for the split decision was the possible increased risks of price coordination. The majority thought that "the loss of Chevron would make no material difference to this behaviour given its passive role in the market as a wholesale supplier. The likelihood of Chevron being an effective constraint on coordination in the future is low, even if sold in the future to another party". Dr Jill Walker in dissenting felt that "there is evidence of tacit coordination between petrol retailers in some regions, primarily where Gull is not present, and that this has contributed to increasing margins in the petrol industry" and that "the permanent removal of Chevron’s assets as an independent supply chain means its potential to disrupt coordination is gone and this behaviour would become more firmly entrenched post-merger".

I had three immediate reactions.

My first was that I was pleased to see a split merger decision: there haven't been many of them (the last one, from memory, was Ezi-Pay in 2012, which was a split decline). Yet the merger applications that come into the Commission these days tend to be complicated and borderline beasts, and frankly it would be very surprising if everyone invariably saw them the same way. For me split decisions suggest there there is indeed that "robust mix of viewpoints represented around the decision table" that I mentioned earlier this week.

My second was a quiet wonder to myself whether Australian and New Zealand attitudes to mergers (and arguably to competition issues as a whole) might be diverging: the majority were Kiwis, the dissenter the Aussie cross-appointee to the Commission. Could be entirely happenstance on the facts of this case, or it could be that the Aussies (rightly or wrongly) are taking a more hardball (or conservative, pick your own word) to competition risks. Sometimes the Aussies in my view go too far: I'm not yet persuaded, for example, that their actions to stop the supermarkets giving out very large petrol discount vouchers ('shopper dockets') were necessary. And some might argue that it's fine for the two jurisdictions to take different lenses to issues. All the same, it's probably best, if only to make trans-Tasman mergers more predictable, if there's a consistent perspective on both sides of the ditch. Perhaps there is, and the split-by-nationality is of no significance. Or perhaps there isn't, in which case it might be useful to explore how the two countries' regulators think about issues such as price coordination and the loss of potential disruptors, and how you assess economic evidence on the issues.

My third reaction is one that won't surprise readers of this blog, and that is the absurdity of the Commission's limited powers to look at the state of competition in markets. In this case, the Commission examined "whether coordination was already occurring in the retail [petrol station] market": it pointed out that even if it were, it may not be anything illegal, and that "The behaviours occurring in the retail fuel markets in New Zealand, such as price following, regional pricing differences and rising margins, can occur in both coordinated and competitive markets".

But it also said that "The majority of Commissioners consider it is possible, though not definitive, that coordination is occurring in some local markets. However, where they may have had the most concerns about coordination occurring post-merger, they consider the divestments remedy those concerns". Dr Walker, however, was not convinced: as noted above, she felt it was happening already.

The stupid thing is that this behaviour - potential, suspected, actual, benign, malign, whatever - only got examined because, fortuitously, a merger came in the Commission's window and triggered a look. The Commission has got no formal power to have a look off its own bat, even though it has a very good feel for where these coordination issues are likely to arise, and would know where to beat the bushes. I've gone on and on about the need for the Commission to be able to conduct 'market studies': it was already screamingly obvious that they should (assorted process issues can be dealt with), and this latest decision is yet more evidence why there's a problem. The government needs to get off its chuff and fix it.