Between competition law and regulation: hybridized approaches to market control

Abstract

Debates abound regarding the relationship between competition law and economic regulation as alternative and/or overlapping mechanisms by which to address market failure. This article focuses on a series of legal powers that demonstrate a ‘hybridised’ nature, pitched between the conventional instruments of competition law and regulation: the market investigation procedure under the UK’s Enterprise Act 2002, the EU’s sector inquiry procedure under Regulation 1/2003, access to infrastructure regulation under Part IIIA of Australia’s Competition and Consumer Act 2010, and the controversial prohibition on ‘unfair methods of competition’ under section 5 of the US’s Federal Trade Commission Act. It is demonstrated that, whilst each of these powers aims to increase the effectiveness of market supervision by incorporation of complementary aspects of each mechanism, the choice to step outside the boundaries of each generates its own risks relating to both rule of law compliance and overall efficiency.