Achieving Better Decision-making in Competition Enforcement Cases: A Public Law Perspective on the Role of the Executive and the Courts

Abstract

This article seeks to examine from a public law perspective some of the problems of the executive-driven system of competition enforcement as it operates in the United Kingdom. The problems experienced in this jurisdiction provide lessons for other countries that employ executive enforcement. The author believes that the complexity of competition proceedings has a tendency to lead to the undermining of important constitutional and public law values. The practice of the Office of Fair Trading and the review of its competition decisions by the Competition Appeal Tribunal are assessed. The problems for litigants and courts caused by persistent and serious defects at the executive stage are emphasised. The current practice leads to too many poorly reasoned decisions. A comparison between US, EU and British practice demonstrates that models exist which better reconcile constitutional values with executive enforcement. The article proposes methods of improving the relationship between courts and executive agencies to improve practice. There are three main suggestions. First, that executive bodies must use internal referees, rather like the Administrative Law Judges at the Federal Trade Commission, to achieve higher standards of public administration in their decision-making. Second, that courts should move towards a speedy, cheap but searching judicial review of executive decisions to ensure they comply with good administrative law standards. Third, only where executive decisions satisfy these standards should courts then engage in detailed consideration of the economic merits of the case. Courts should not attempt to reconstruct executive decisions or processes that have failed because to do so merely perpetuates the problem and undermines the guarantee of good administration at the executive level.