How to define relevant labour markets?
The application to employers of competition rules and their conduct, including concentrations (see here
Competition between employers is receiving an increasing attention also on the old continent. We have seen enforcement in several European countries (see this). This summer, the European Commission reported
Yet the revised Market Definition Note
, I reflect on this omission and discuss how to define relevant labor markets. The labour markets must be defined in cases where the conduct or concentration is being investigated concerns the purchasing of labor, i.e. employer conduct or employer concentrations.
There are good reasons to intervene against anti-competitive conduct and concentrations of employers. First, the exercise of market power by employers may have negative effects on downstream consumers (see this
). This will be the case when the exercise leads to a lower output of the undertakings in question, which is then not offset by their downstream competitors.
EU competition law should nevertheless defend workers against competitive harm even if consumers are not impacted negatively (see here
) but also because we tend to spend a good portion of our lives at work and hence care deeply about our working conditions (see here
).
into how journalists will be impacted by a media concentration.
The Notice does not say anything about labour markets. The only provision that is somewhat related to this is paragraph 7, where it states that the guidance in the Notice applies also to the definition of “purchasing markets”, i.e. The Notice acknowledges the existence of relevant labour markets, since employers purchase their employees on labour markets. Since labour markets are markets on which employers purchase labour, the Notice arguably recognises the existence of relevant labour markets.
Paragraph 7 further advises to define purchasing markets ‘taking into account their specificities’. However, such advice is of little value if these specifics are not stated. The only specificity of purchasing markets mentioned by the Notice is the obvious point that actual competitors of a buyer are given by whom the sellers consider as alternative buyers.
Labour markets are missing from the Notice despite express requests to include them. The European Trade Union Confederation criticized
the absence of labour markets as part of the stakeholder consultation 2020 on the previous notice. When the draft new Notice published for comments in 2022 did not change anything in this respect, the criticism was voiced
also by the Catalan Competition Authority.
). The question then is with which other undertakings are these employers competing for the respective labour. The first dimension to be discussed is the occupation dimension. This corresponds to the product dimensions of product markets. As observed by the Notice, ‘in purchasing markets the substitution assessment focuses on alternatives available to suppliers, rather than alternatives available to customers.’ The occupation dimension is thus given by the alternatives available to workers.
). The alternatives available to car suppliers are then very much contingent on the preferences of buyers.
Employers have preferences over various worker characteristics. Employers are most likely to need certain skills. In this regard, a position at another company will be in the same market as jobs in the undertaking in question if the workers who hold these positions have the necessary skills. Some employers have additional requirements that go beyond skills, such as matching personality traits with the culture of their workers (see here
). All these additional requirements imposed by employers limit the options available to workers, and thus narrow the scope of the labour market. workers. Rethink the car market. Car sellers don’t usually care who buys their car. Which alternatives are available to suppliers thus depends just on the preferences of buyers: whether a buyer is in competition with another one depends on whether the latter prefers the same car suppliers as the former (see here
Workers, in contrast, do have preferences over various aspects of jobs (see here
). The financial compensation is a major consideration. The actual content of the work is also important. Workers may also have preferences regarding practical issues, such as shift flexibility and vacation time (see here
). However, they may also have a preference for a particular workplace culture (see this
) or even the identities of other workers (see this
).
The question which alternative jobs are available to workers has also a geographic dimension. A job is only an alternative if the worker is willing to commute to it or even relocate there (see here
One should not infer too much about the relevant labour market from information about the downstream product markets on which the respective undertaking is active. They can have a wide range of geographical scope. For instance, mines hire miners locally but distribute their products even globally (see here
)
In addition, two undertakings may compete as sellers but not as employers and vice versa. For the first possibility, it can be achieved when two undertakings produce the exact same output, but use different technology to do so, and therefore need workers with different skill sets. Consider, for example, different types of power stations. Or, the companies may need the same skills, but they are so far apart that their employees will not be willing to switch. This occurs when undertakings use the same workers to produce products that cannot be substituted. This can be illustrated by the US case concerning the e-commerce platform eBay and the financial software company Intuit, who were in competition for computer engineers (see here
). That is to say that labour markets should be defined in their own right.
Conclusion
In principle, EU competition law is enforceable also against employers. The relevant legal provisions are sufficiently flexible, and we have seen some enforcement actions already. To make sure that interventions against employer market-power reach their full potential, it is important to recognize the possibility of such interventions across the entire EU competition law. This includes the definition of relevant labour markets. The Commission must therefore quickly find a means to declare that it is willing to define relevant labour markets. We are still a long way from this being true in Europe.