Mixed Policy Objectives in Merger Control: What Can Developing Countries Learn from South Africa?

Abstract

Adopting mixed policy objectives (economic and non-economic) introduces a divergence to the ‘economic based model’ currently advocated as the basis for competition law convergence. One area of competition law where mixed policy objectives are prominently featured is merger control. South Africa is a leading example of a jurisdiction that embraces mixed objectives of competition law. In this article, we look at competition law enforcement in South Africa focusing on large mergers in the past fifteen years. The article goes beyond the conceptual, pros & cons discussion of the inclusion of public interest considerations in competition law to identify the analytical process followed in a merger situation and empirically examines the impact these considerations have had on the final decision, in comparison to other considerations usually taken into account, i.e. efficiencies/consumer welfare. The article also addresses administrability issues and challenges arising from this model. This should in turn, engage the academia in critical examination of this model, assist policymakers in making an informed policy choice and benefit practitioners in understanding how merger analysis functions in this mode