This chapter highlights the main global competition enforcement developments in 2021. It includes the most significant changes in variables such as competition staff, dawn raids, leniency applications, use of settlements and commitments, enforcement decisions, market studies and merger activity.
OECD Competition Trends 2023
OECD Competition Trends
2. Key developments in 2021
Abstract
While previous editions of OECD Competition Trends reports included a complete overview of all aspects of competition enforcement around the globe, this year’s edition focuses specifically on the main developments in 2021. Consequently, the variables that demonstrated the most remarkable changes are discussed, which include: a higher-than-average increase in competition staff, a recovery in dawn raids, a continued decline in leniency applications in all-but-one region, an increase in the use of settlements or commitments, more cartel decisions, higher imposed fines, a lower number of market studies and increased merger activity.
Competition staff grew much faster in 2021 than in the preceding years
In 2021, the jurisdictions in the OECD CompStats database employed 8 848 competition staff, with a mean of 126 and median of 57 per jurisdiction. This represents an increase in total staff of 4.9% with respect to 2020, compared to a compound annual growth rate of only 1.6% over the period 2015 to 2020. However, while the distribution of competition staff across regions is unbalanced (see Figure 2.1), so is its growth. Out of 70 jurisdictions that reported data on competition staff for both 2020 and 2021, 40 (57%) saw an increase in the number of competition staff in the past year, while 20 (28%) witnessed a decrease, and there was no change in the ten remaining jurisdictions (see Figure 2.2).
Figure 2.1. Distribution of worldwide staff working on competition by region, 2021
Note: Data based on the 70 jurisdictions in the OECD CompStats database that provided data for competition staff for seven years. Competition staff are staff working only on competition (excluding administrative staff or staff involved in other functions of the authority, such as consumer protection, public procurement, sector regulation).
Source: OECD CompStats database.
Figure 2.2. Percentage change in 2020‑21 of the number of competition staff per jurisdiction
Note: Data based on the 70 jurisdictions in the OECD CompStats database that provided data for competition staff for seven years. Competition staff are staff working only on competition (excluding administrative staff or staff involved in other functions of the authority, such as consumer protection, public procurement, sector regulation).
Source: OECD CompStats database.
Although the average number of competition staff grew in all regions in 2021, the Americas and Asia-Pacific were the main regions driving this growth. In the Americas, the average number of staff grew from 150 to 163, while Asia-Pacific saw its average headcount increase from 197 to 212. Europe and MEA saw very marginal increases in 2021 to 93 and 56 respectively. When considering the number of competition staff per million inhabitants, this trend remains mostly the same, growing in all regions except MEA, where it decreased slightly.
Figure 2.3. Average number of competition staff per agency, 2015‑21
Note: Data based on the 70 jurisdictions in the OECD CompStats database that provided data for competition staff for seven years. Competition staff are staff working only on competition (excluding administrative staff or staff involved in other functions of the authority, such as consumer protection, public procurement, sector regulation).
Source: OECD CompStats database.
Figure 2.4. Competition staff per 1 million inhabitants, 2015‑21
Note: Data based on the 70 jurisdictions in the OECD CompStats database that provided data for competition staff for seven years. Competition staff are staff working only on competition (excluding administrative staff or staff involved in other functions of the authority, such as consumer protection, public procurement, sector regulation).
Source: OECD CompStats database and United Nations World Population Prospects database.
It is also interesting to compare the change in staff per jurisdiction with the change in competition budget. Firstly, as expected, an increase in budget is generally associated with an increase in competition staff (see the positive correlations in Figure 2.5). However, while the large majority of competition authorities increased both their budget and staff between 2015‑21, a disproportionate number of authorities faced budget cuts in 2021 (22 jurisdictions). Furthermore, out of those jurisdictions that had a reduction in budget in 2021, 14 still had an increase in the number of competition staff. This may partly explain why the aggregate growth in competition budget was not of the same magnitude as the increase in the number of competition staff.
Figure 2.5. Annual percentage change per jurisdiction of staff and budget in 2020‑21 (top) and between 2015‑21 (bottom)
Note: Data based on the 64 jurisdictions in the OECD CompStats database that provided data for competition budget and staff for seven years. Nominal competition budget figures are in 2015 euros (non-euro currencies are converted using 2015 official exchange rates on 31 December 2015) to eliminate distortions due to currency fluctuations. Competition staff are staff working only on competition (excluding administrative staff or staff involved in other functions of the authority, such as consumer protection, public procurement, sector regulation).
Source: OECD CompStats database.
Dawn raids recovered from the dip in 2020, but are generally still fewer than pre‑pandemic
In 2020, government restrictions in response to COVID‑19 meant that many competition authorities stopped performing dawn raids for most of the year. However, in 2021, the number of dawn raids seemed to recover in all regions. The pace of recovery varied among jurisdictions, with an average number of dawn raids in cartel cases in non-OECD jurisdictions higher than in previous years, while the OECD average in 2021 was still lower than in 2019.
Figure 2.6. Average number of cartel dawn raids for OECD, non-OECD jurisdictions and all jurisdictions, 2015‑21
Note: Data based on the 56 jurisdictions in the OECD CompStats database that provided data for cartel dawn raids for seven years.
Source: OECD CompStats database.
Dawn raids for abuse of dominance investigations, of which the majority take place in Europe and MEA, followed a similar trend, showing a recovery in 2021. The recovery was particularly swift in non-OECD jurisdictions, as their average number of abuse of dominance dawn raids in 2021 exceeded levels between 2015‑20. OECD jurisdictions performed more dawn raids in 2021 than in 2020 but still less than in 2019.
Figure 2.7. Average number of abuse of dominance dawn raids for OECD, non-OECD and all jurisdictions, 2015‑21
Note: Data based on the 53 jurisdictions in the OECD CompStats database that provided data for abuse of dominance dawn raids for seven years.
Source: OECD CompStats database.
Leniency applications increased in Europe in 2021, but continued declining in the other regions
According to the OECD Competition Trends 2022 report, leniency applications declined in recent years across the globe. In 2021, this trend generally continued, with Europe being the only exception. In Europe, leniency applications increased by 32% in 2021, from a total of 65 applications in 2020 to 86 in 2021. This increase was noticeable in a significant number of jurisdictions, with a few that showed sharp increases. Despite this partial recovery, the number of leniency applications in Europe in 2021 (86) was still lower than in 2019 (96). MEA showed the largest decrease in leniency applications (‑75%), followed by the Americas (‑50%).
Figure 2.8. Total leniency applications, 2015‑21
Note: Data based on the 51 jurisdictions in the OECD CompStats database that provided data for leniency applications for seven years.
Source: OECD CompStats database.
Authorities used more settlements and commitments in 2021
Competition authorities use settlement and commitment procedures to terminate cartel and abuse of dominance investigations. Their use may help improve the allocation of an agency’s resources by allowing staff to focus on other activities or cases. Thus, they may allow authorities to adopt more decisions for a given amount of resources. Although settlements are most common for cartel cases and commitments for abuse of dominance investigations, some jurisdictions use both tools for either conduct.1
In 2021, on average, one in every three cartel cases was resolved by means of a settlement, an increase from 26% in 2020. This increase comes after a drop in 2020, so there was a return to levels previously observed in 2019. The increase came particularly from OECD jurisdictions, where on average 44% of the cases ended with a settlement (from 29% in 2020). On the contrary, the aggregate percentage of cartel cases that ended with settlements in non-OECD jurisdictions remained stable at 24%.
Regionally, MEA and the Americas were the regions with the most prominent increases. In MEA, 48% of cartel cases in 2021 included settlements (from 35% in 2020), while in the Americas the aggregate percentage was 28% in 2021 (compared to 20% in 2020). However, the percentage in the Americas is still below that in the years 2015‑19. Asia-Pacific also saw an increase in the percentage of cartel cases with settlements, namely from 17% in 2020 to 22% in 2021. The increase in Europe was slight, from 28% to 31%.
Figure 2.9. Percentage of cartel cases with a settlement, 2015‑21
Note: Data based on the 54 jurisdictions in the OECD CompStats database that provided data for cartel decisions and cartel settlements for seven years.
Source: OECD CompStats database.
The use of settlements and commitments in abuse of dominance investigations overall also increased significantly in 2021. This increase occurred in all regions except Europe, where the percentage of cases decreased from 38% in 2020 to 20% in 2021. In Asia-Pacific, after a year without any settlements or commitments, almost 43% of the abuse of dominance decisions in 2021 ended with a settlement or commitment. In the Americas, the percentage increased from 9% in 2020 to 19% in 2021 and MEA saw an increase from 18% in 2020 to 41% in 2021.
Figure 2.10. Percentage of abuse of dominance cases with a settlement or commitment, 2015‑21
Note: Data based on the 60 jurisdictions in the OECD CompStats database that provided data for abuse of dominance decisions and decisions with settlements or commitments for seven years.
Source: OECD CompStats database.
Cartel decisions increased in 2021 while abuse of dominance decisions remained stable
The recovery in the number of dawn raids, the increase in leniency applications in Europe and the rise in the use of settlements and commitments to close investigations seems to have led to an increase in cartel decisions by competition authorities. On average, CompStats jurisdictions took around eight cartel decisions in 2021, an increase from 7 in 2020. This increase occurred in all regions except the Americas, where the average number of cartel decisions decreased from 7 in 2020 to 5 in 2021. MEA was the region with the highest average number, namely 14 decisions per jurisdictions taken in 2021.
Figure 2.11. Average number of cartel decisions, 2015‑21
Note: Data based on the 68 jurisdictions in the OECD CompStats database that provided data for cartel decisions for seven years.
Source: OECD CompStats database.
In contrast, the average number of abuse of dominance decisions stayed stable (around three per jurisdiction). While it decreased in Americas and MEA, it increased in Europe and Asia-Pacific. MEA was the region with the highest value, with around six decisions per jurisdiction on average in 2021.
Figure 2.12. Average number of abuse of dominance decisions, 2015‑21
Note: Data based on the 67 jurisdictions in the OECD CompStats database that provided data for abuse of dominance decisions for seven years.
Source: OECD CompStats database.
Fines increased significantly in all regions
The total fines imposed in cartel and abuse of dominance cases increased in all regions in 2021. The total amount of fines imposed by all participating jurisdictions increased by 53%, from EUR 5.6 billion in 2020 to EUR 8.5 billion in 2021. The average amount of fines per jurisdiction increased from EUR 84.4 million in 2020 to EUR 128.8 million in 2021. Asia-Pacific showed the largest growth of 183% from EUR 0.21 billion in total in 2020 to EUR 0.6 billion in 2021. In MEA, total fines increased from EUR 0.68 billion in 2020 to EUR 1.24 billion in 2021, growing more than 80%. The increase in Europe was 43% (from EUR 3.73 billion in 2020 to EUR 5.33 billion in 2021) and 41% in the Americas (from EUR 0.93 billion in 2020 to EUR 1.32 billion in 2021).
Figure 2.13. Total fines imposed (abuse of dominance and cartel cases), 2015‑21
Note: Data based on the 62 jurisdictions in the OECD CompStats database that provided comparable data for all seven years. Fines are in 2015 euros (non-euro currencies are converted using 2015 official exchange rates on 31 December 2015) to eliminate distortions due to currency fluctuations.
Source: OECD CompStats database.
While cartels still make up the majority of the fines (68%), there was a significant increase in the share of abuse of dominance fines in 2021 from 17% in 2020 to 32%.
Figure 2.14. Total fines imposed by type of infringement, 2015‑21
Note: Data based on the 62 jurisdictions in the OECD CompStats database that provided comparable data for all seven years. Fines are in 2015 euros (non-euro currencies are converted using 2015 official exchange rates on 31 December 2015) to eliminate distortions due to currency fluctuations.
Source: OECD CompStats database.
Market studies continue to be an advocacy tool for competition authorities
In 2021, market studies decreased by 4.6%, with CompStats jurisdictions finalising a total of 166 market studies in 2021, compared 174 in 2020. Some regional differences exist: Europe saw an increase (from an average of 2.7 market studies per jurisdiction in 2020 to 2.9 in 2021), while the other three regions saw a decrease, of which MEA’s decrease was the most pronounced (from 2.6 in 2020 to 1.7 in 2021).
Figure 2.15. Average number of market studies 2015‑21
Note: Data based on the 64 jurisdictions in the OECD CompStats database that provided data for market studies for seven years.
Source: OECD CompStats database.
The overall intervention rate in merger cases decreased in 2021
The average merger intervention rate (i.e., the percentage of merger cases in which competition authorities have intervened, either by prohibiting a merger or by approving a merger under certain conditions) decreased from 2.5% in 2020 to 1.6% in 2021.
Figure 2.16. Average merger intervention rate, 2015‑21
Note: Data based on the 65 jurisdictions in the OECD CompStats database that provided comparable data for all seven years.
Source: OECD CompStats database.
The decline in the merger intervention rate was due to both a slight decrease in the number of mergers in which competition authorities intervened (the numerator) and, even more so, due to a significant increase in the number of merger decisions (the denominator).
In 57 of 65 jurisdictions in the CompStats database that reported merger data for seven years, there was an increase in merger notifications in 2021. The increase, on average, was 47% with respect to notifications in 2020. This increase was somewhat expected, as notified mergers had already started to pick up in the second half of 2020 after an initial decline that year as a result of the COVID‑19 pandemic that made some firms pause their merger activity given the economic uncertainty.
While increased merger activity in 2021 has certainly played a major role in most jurisdictions, the change in merger notification thresholds in some jurisdictions may also have been a relevant factor. Such modifications can lead, and have led, to a significant change in the number of mergers that are required to be notified. For instance, in some jurisdictions, like the Philippines, the relevant legislation was altered to modify, even if temporarily, the merger notification thresholds. In others, thresholds levels changed as a result of being indexed to macroeconomic variables, such as gross national product in the United States. Finally, jurisdictions like Austria and Germany, recently introduced new criteria to notify transactions, particularly, transaction value thresholds, which could have had an impact on the number of decisions that have been notified since their introduction.
Figure 2.17. Percentage change in the number of merger notifications per jurisdiction in 2020‑21
Note: Data based on the 65 jurisdictions in the OECD CompStats database that provided comparable data for all seven years.
Source: OECD CompStats database.
In 2021, the average number of merger decisions increased by 41% (relative to 2020) to 189 per jurisdiction. However, regional differences exist. The Americas was the region with the largest increase, from an average of 160 decisions per jurisdiction in 2020 to 291 in 2021. Moreover, merger decisions increased in all-but-one of the jurisdictions in the region, more than doubling in some. The average number of merger decisions per jurisdiction increased 31% in Asia-Pacific, from 202 to 264, 32% in MEA, from 107 to 141, and 19% in Europe, from 109 to 130.
Figure 2.18. Average number of merger decisions, 2015‑21
Note: Data based on the 65 jurisdictions in the OECD CompStats database that provided comparable data for all seven years.
Source: OECD CompStats database.
As in previous years, most mergers in 2021 did not raise competition issues, with 95% of the mergers cleared in Phase I without remedies, the highest this percentage has been over the period 2015‑21. The remaining 5% required further investigation or intervention. Around 3.4% of mergers went into Phase II but did not require any intervention.
Figure 2.19. Type of merger decisions, 2015‑21
Note: Data based on the 65 jurisdictions in the OECD CompStats database that provided comparable data for all seven years.
Source: OECD CompStats database.
In 1.4% of merger decisions, competition authorities were able to resolve the identified competition concerns through a remedy in either Phase I or Phase II. In absolute values, this accounted for 167 transactions approved conditionally in 2021, which represents a decrease from 2020, when 196 transactions were subject to remedies. This is the second factor that contributed to the decrease in the intervention rate.
Figure 2.20. Number of decisions with remedies and their percentage with respect to total merger decisions
Note: Data based on the 65 jurisdictions in the OECD CompStats database that provided comparable data for all seven years.
Source: OECD CompStats database.
Although the intervention rate decreased on aggregate, 29 mergers were prohibited in 2021 (0.2% of merger decisions). This represents an increase of 38% from the 21 prohibited in 2020. Finally, 41 merger notifications were withdrawn in 2021, compared to 51 in 2020, which represents a decrease of close to 20%.
Figure 2.21. Number of prohibitions and withdrawn mergers, 2015‑21
Note: Data based on the 65 jurisdictions in the OECD CompStats database that provided comparable data for all seven years.
Source: OECD CompStats database.
Note
← 1. In 2016, the OECD held a roundtable on Commitment Decisions in Antitrust Cases. While the majority of contributions stressed that commitments mostly apply to unilateral conduct or anticompetitive merger investigations, others highlighted the possibility of using them, while limited, to finalise anticompetitive agreements cases. For instance, in cases that involve associations (Indonesia), or vertical agreements (Israel). Other jurisdictions stressed that they also use them in specific circumstances for cartel cases (Singapore or South Africa). As for the use of settlements in unilateral conduct investigations, a relevant example is the European Commission, which in 2016, issued its first settlement decision under Article 102 TFEU, reducing by 30% the fine of Alstoff Recycling Austria in exchange for co‑operation. This settlement included the implementation of a structural remedy in addition to the fine (Case No. 39 759).