An Academic View on the Role and Powers of National Competition Authorities (2016)

Abstract

This study provides background on the ‘ECN plus project’ by describing the European Competition Network (ECN) and the role of National Competition Authorities (NCAs). It investigates the decentralisation of the enforcement of EU competition rules and the structure and the cooperation mechanisms of the ECN as well as the experiences with decentralised enforcement and the ECN during the last decade. The ECN has functioned largely successfully as a platform for NCAs’ cooperation and the voluntary harmonisation of national procedural rules. However, national regimes still differ in certain aspects, particularly in Member States that follow the judicial enforcement model and/or that impose criminal remedies on breaches of competition rules. This study was provided by Policy Department A at the request of the ECON Committee.

Legitimacy and Multi-Level Governance in European Union Competition Law: A Deliberative Discursive Approach, Journal of Common Market Studies (2015)

Abstract

Union competition law protects ‘consumer welfare’, but what role do consumers play in competition policy-making? This is the question that this article seeks to answer. In the search for an answer, the article investigates the moral (output) and procedural (input) legitimacy of the recent competition law reforms. Following a discursive approach, the article looks into the roles played by institutions deliberating for citizens (consumer organizations, European Parliament and the Union Courts) in the reform process. This inquiry results in the questioning of the reforms’ legitimacy, and it also leads to broader conclusions regarding the legitimacy of multi-level governance: expert discourses overshadow potential deliberative qualities of networks, which exacerbates networks’ legitimacy problems. Also, the input/output legitimacy dichotomy appears problematic, as expert policy-making in the absence of citizen participation does not guarantee policies resonating with public interest.

Antitrust Federalism in the EU and the US (Routledge & Cavendish, 2013)

Abstract

The EU and the US are the preeminent examples of multi-level polities and both have highly developed competition policies. Despite these similarities however, recent developments suggest that they are moving in different directions in the area of antitrust federalism. This book examines multi-level governance in competition policy from a comparative perspective. The book analyses how competition laws and authorities of different levels – the federal and the state levels in the US and the national and the supranational levels in the EU – interact with each other. Inspired by the increasingly divergent policy developments taking place on both sides of the Atlantic, the author asks whether the EU and the US can draw policy lessons from each other’s experiences in antitrust federalism. Antitrust Federalism in the EU and the US reveals the similarities and differences between the European and American models of antitrust federalism whilst employing policy network models in its comparative analysis of issues such as opacity and accountability in networks. The book is essentially multidisciplinary in its effort to initiate dialogue between the Law and Political Science literatures in this field. This book will be of particular interest to academics, students and practitioners of Competition Law, Constitutional Law and Political Science.

‘Network Governance in European Competition Law Post-Financial Crisis: What Impact on Legitimacy?’, in JM Beneyto and J Maillo (eds.), Fostering Growth in Europe: Reinforcing the Internal Market, (Madrid: CEU Ediciones, 2014).

Abstract

This paper looks into the legitimacy of network governance in European Union competition policy after the financial crisis. The financial crisis has further decreased the deficient citizen trust in the Union’s governance, thus; it exacerbated the Union’s notorious legitimacy deficit. Under the shadow of this citizen distrust, proponents of neo-liberal network governance can no longer rely on output legitimacy arguments. If achieving an ‘ever closer Union between the peoples of Europe’ is to stay as a viable aim for the Union, citizens need to be firmly anchored to policies that affect their daily lives substantially. Looking at Union competition policy from this perspective the paper leads to sceptical conclusions: the recent reforms have oriented Union competition rules towards a more neo-liberal economic approach without sufficient input from Union political institutions and citizens. Likewise, increased reliance on economic and econometric analysis renders the competition law discourse highly technical. This results in exclusivity in governance at the expense of the participation of political institutions, organisations representing consumer interests and ultimately citizens.

‘Anchoring the Consumer: Accountability and Legitimacy in Competition Law’ (2012, project proposal).

Abstract

This proposal offers interdisciplinary, empirical and comparative research into the legitimacy and accountability problems facing EU competition law. EU competition law has gone through a significant reform process orchestrated by the European Commission. The Commission’s overarching goal in this process was to place ‘consumer welfare’ at the centre of the enforcement of competition rules. In contrast to the strong consumer focus in the design of substantive rules, consumers play a very limited role in the process of the making and enforcement of EU competition rules. Firstly, institutions representing consumer/citizen interests, such as the European Parliament and civil society, have been largely absent in the process leading to reforms. Secondly, the reforms increased economic technicality and the Commission’s administrative discretion in the enforcement of competition rules at the expense of judicial and parliamentary oversight. The limited ex ante consumer participation jeopardises the legitimacy of EU competition law, whereas the limited ex post judicial and parliamentary control impedes accountability. The voluminous law and economics literature of competition law focuses almost exclusively on substantive questions, turning a blind eye to legitimacy and accountability problems. Against this background, the proposed project will study the legitimacy and accountability problems in EU competition law and potential solutions for these problems using delegation theory as the main analytical framework. For methodology, the project will use empirical research of the role of consumer organisations and parliamentary committees, legal analysis of judicial review standards, and comparative research of the US antitrust regime that provided the main inspiration for the reform agenda. By filling an important gap in the literature, the project will contribute to developing mechanisms for firmly anchoring consumers in the making and enforcement of EU competition rules.