Monday, February 25, 2013

Integrate or Separate - Institutional Design for the Enforcement of Competition Law and Consumer Law

Posted by D. Daniel Sokol

Kati Cseres, University of Amsterdam - Amsterdam Center for Law & Economics has an interesting paper on Integrate or Separate - Institutional Design for the Enforcement of Competition Law and Consumer Law.

ABSTRACT: Over the past years several EU Member States decided to integrate their competition authorities with their consumer protection agencies. The Danish Competition Authority and the Danish Consumer Agency merged into the Danish Competition and Consumer Authority in 2010, the new Finnish Competition and Consumer Authority has begun operating on 1st January 2013, the Netherlands Authority for Consumers and Markets (ACM) will merge the Netherlands Competition Authority (NMa) with the Dutch Consumer Authority (CA) and the Netherlands Independent Post and Telecommunications Authority (OPTA) from February 2013.

These institutional mergers are the results of political decisions, based mainly on budgetary concerns. Besides costs savings, national governments justified these institutional mergers by arguing that a consolidated agency can increase efficiency and effectiveness of competition oversight and market regulation, anticipate market developments in a flexible and integrated manner, make better use of consolidated knowledge and expertise, enhance the importance of consumer and competition affairs in society, ensure corporate responsibility with regard to consumer interests and streamline administration. This paper provides a simple framework that helps to evaluate these arguments and decide on the alternative allocation of regulatory powers.

Accordingly, the paper discusses the separation and integration of the public enforcement of competition law and consumer protection by distinguishing three different institutional models: the separate agency model, the partially integrated model and the integrated model. The three models represent different ways for combining or separating public enforcement responsibilities. The paper analyses the synergies and the conflicts of allocating enforcement powers in one or two agencies and sets out the likely consequences of a certain institutional arrangement for procedural norms such as the proportionality of remedies and the time of intervention and for institutional performance norms such as expertise, administrative efficiency, opportunities for consumer participation and accountability. The goal of the paper is to provide a basic overview of the relevant legal and institutional questions that have to be considered when the allocation of regulatory powers is decided upon. The paper also discusses the impact of the EU legal and policy framework on the Member States’ institutional design and the EU’s constraining effects on institutional path dependence.

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