Development Of Competition Policy Research Articles

Trends in the development and implementation of competition policy

Aim. To study the trends in the formation and implementation of competition policy.Objectives. To analyze global trends in the process of formation of competitive policy; to identify the influence of endogenous and exogenous factors in the process of competitive policy development; to determine the general trends of the leading states of the world that contribute to the support of competitive relations.Methods. The research utilized general scientific methods (comparative, complex, systemic, structural analysis), the method of cause-and-effect relationship, logical method.Results. Competitive policy in modern conditions has acquired a dualistic character. It combines in a contradictory unity the regulation of firms and households in the domestic and foreign markets, different measures of influence on the subjects of partner and adversary countries, control and influence on the markets of monopolized and competitive industries. The function of competitiveness development includes protection from monopolism and from the rivalry of foreign commodity producers. The boundaries of fair and unfair competition are gradually blurring. Changes in the rules of economic activity legitimize the behavior of economic entities, which previously was defined as unfair and was subject to sanctions provided for by the legislation. A trend common to many countries is the application of standards and norms established at the global level by their authorities regulating competition relations to the market activities of all economic entities in the country. Attempts to adapt the best world experience in supporting competitive relations to the national and historical peculiarities of each country have become widespread.Conclusions. The analyzed trends in the development of competition policy under the influence of the ratio of exogenous and endogenous factors in each country are manifested in two main variants. One of them is the policy of openness, inclusion of the national economy in the global economic system. Another option is the policy of isolation and restraint of competition from foreign market participants. A smaller part of the states prefer to choose one of these options, the majority tries to move along a compromise path, which can bring them success with the right allocation of priorities.

INVOLUTION GAME WITH SPECIALIZATION STRATEGY

Involution now refers to the phenomenon that competitors in the same field make more efforts to struggle for limited resources but get lower individual “profit effort ratio”. In this work, we investigate the evolution of the involution game when competitors in the same field can adopt not only the strategy of making more efforts but also a specialization strategy which allows competitors to devote all their efforts to part of the competitive field. Based on the existing model, we construct the involution game with the specialization strategy and simulate the evolution of it on a square lattice under different social resource, allocation parameter (characterizing the intensity of social competition), effort and other conditions. In addition, we also conduct a theoretical analysis to further understand the underlying mechanism of our model and to avoid illusive results caused by the model settings. Our main results show that, when the total effort of the specialization strategy and the ordinary strategy is equal, the group composed of all the agents has a certain probability to choose the ordinary strategy if the allocation parameter is very large (that is to say, the intensity of competition is very weak), otherwise the group will choose the specialization strategy; when the total effort of the two strategies is not equal, the proportion of the specialization strategy adoption is related to the social resource, the effort and the allocation parameter. To some extent, our study can explain why division of labor appears in human society and provide suggestions for individuals on competition strategy selection and governments on competition policy development.

ІНСТРУМЕНТИ ЕКОНОМІЧНОГО АНАЛІЗУ ДЛЯ ОЦІНЮВАННЯ ЕФЕКТІВ НА КОНКУРЕНЦІЮ ВІД ЗАСТОСУВАННЯ ПРАКТИК ЦІНОВОЇ ДИСКРИМІНАЦІЇ У ФОРМІ ЗНИЖОК

Background. The relevance of this study lies in the need to elucidate the effects of price discrimination and its impact on competition and social welfare. The research objective is to systematize economic tools for assessing price discrimination, particularly in the context of providing discounts. The object of the research is price discrimination, specifically in the context of rebates, widely used by companies across different markets. The research subject encompasses economic tools for assessing pro competitive and anti-competitive effects of price discrimination in the form of discounts. Methods. To achieve the stated objective, both general scientific and specialized research methods were employed. These included the analysis of contemporary literature on competition law and economics, as well as decisions made by competition authorities and courts. The method of analysis and synthesis was used to summarize and classify the instruments. Results. The study identified various economic instruments for assessing the effects of price discrimination, including the price-cost test, the equally efficient competitor test, the pull effect test, the new entrant burden test, the voluntary loss of profits test, and others. Conclusions. The combined application of these tools allows to distinguish between pro-competitive and anti-competitive behavior of companies. It is imperative to select these tools with respect to the specific case and jurisdiction to avoid imposing excessive restrictions on loyalty programs. The growing importance of the digital economy and Ukraine's future membership in the European Union make this research relevant and crucial for the development of competition policy.

РЕГУЛЮВАННЯ КОНКУРЕНЦІЇ В ЕКОНОМІЦІ ПЛАТФОРМ: ПРОБЛЕМИ ТА ІНСТРУМЕНТИ

Важливим наслідком цифровізації економіки стала кардинальна перебудова інституційного ландшафту господарської діяльності людини. Її ключовим елементом є швидке поширення платформенної бізнес-моделі, яке досягається завдяки конкурентним перевагам порівняно з традиційними ієрархічними структурами. У нових умовах трансформація їх джерел та інструментарію конкурентної боротьби актуалізує завдання перегляду засад конкурентної політики держави.Визначено специфіку інформаційних (цифрових) платформ як об’єкта регулюючого впливу, окреслено засади регулювання в цифровій економіці, зазначено роль ІП як регуляторних посередників, виокремлено особливості конкурентної політики держави в економіці ІП. Розглянуто напрями ринкового позиціонування, джерела конкурентних переваг цифрових платформ та їх вплив на трансформацію регуляторної політики. Акцентовано увагу на особливостях поєднання жорстких правил і загальних принципів, розсіяного моніторингу й алгоритмічного управління, необхідності врахування відмінностей B2B, B2C і P2P у процесі регулювання діяльності платформ. Представлено інструменти їх регулювання. Визначено регулюючі функції цифрових платформ і обґрунтовано ключову роль репутаційних інструментів як засобу регулювання. Проаналізовано передумови і механізми використання цифрових платформ як регуляторних посередників. Наведено приклади регуляторного посередництва.До напрямів конкурентної політики віднесено підтримку розвитку цифрових платформ, захист конкуренції та обмеження монополізації формованих платформами ринків, захист конкуренції у екосистемах платформ. Увагу зосереджено на ролі даних як специфічного фактора виробництва і ресурсу отримання конкурентних переваг на ринках платформ. Представлено інструменти заборон і зобов’язань, що можуть використовуватися для обмеження антиконкурентної поведінки. Проаналізовано передумови появи і засоби антиконкурентних дій структуроутворюючих (домінантних) платформ. Злиття і поглинання досліджено як об’єкт регулювання антиконкурентних дій у платформенній економіці. Розглянуто вплив платформізації на перспективи розвитку національної конкурентної політики.

Deregulation and competition in Japanese intercity coach industry

Abstract In this paper, we investigate the economic effects of deregulation in Japan’s intercity coach industry. Specifically, we examine the intensity of competition in the industry using a unique dataset, to evaluate the economic effects of two major deregulations in 2002 and 2013. The absence of organized data means there is no previous research that quantitatively evaluates the deregulations. We collect data capturing the entry of bus operating companies by web-scraping and use a structural estimation method developed in econometrics for the purpose of measuring the degree of competition. Our empirical analysis yields the following three main results. First, we find that the markup ratios always exceed 1, which indicates that the entry of one additional firm always intensifies competition. Specifically, the markup gained by one firm under duopoly is estimated to be about three quarters of that under monopoly. Second, the competitive effect of an additional entry decreases as the number of incumbents increases. This result is obtained irrespective of the mode of competition. Third, we find that the services offered by firms in the industry are significantly differentiated. Counterfactual analysis reveals that additional 0.76 firms can enter a market on average by differentiating their products from each other. These results provide useful insights into the development of competition policy pertaining to the contemporary transportation industry.

The EU Global Competitive Force Index

Introduction. With this paper we want to show that the study of international competitiveness only at a country level does not correspond to the contemporary development of the global economy. The author presents the methodology for competitiveness grouping of international integration groupings’ member states in order to assess the global competitive force of trade and economic groupings in the world economy. Based on the data of the Global Competitiveness Report 2019 regarding the competitiveness of the EU Member States, the Global Competitive Force Index of the EU as an interstate integration grouping has been calculated. The Index will help evaluate economic integration or disintegration processes in the global economy. The research demonstrates the necessity of the annual global competitive force ranking of international integration groupings. This study will enhance knowledge in the field of economics by grouping the EU Member States’ global competitiveness indices according to 12 criteria and identifying the new quantitative and qualitative integrated Global Competitive Force Index of an international integration grouping. To reach this objective, we will define the Integrated Global Competitive Force Index as the average of the individual points of the EU Member States in 2019. The novelty of our study lies in the comparative analysis of the three largest interstate integration groupings from the perspective of their competitive force. The introduction of the new integrated Global Competitive Force Index of interstate integration groupings will help competition policy makers decide which processes of economic integration or disintegration should be preferred in order to increase their competitive force in the global economy. The purpose. Research and calculation of the European Union’s Integrated Global Competitive Force Index to analyze the attractiveness of the European Union in terms of global competitive force. Based on the calculation of the EU Integrated Global Competitive Force Index 2019, the attractiveness of the EU competitive environment has been determined according to 12 criteria. Results. The ranking of the three largest regional integration groupings of the world economy has been formed. Specification of the assessment and results of the integrated index of interstate integration groupings’ global development can be used for the competition policy development of the individual member state of an integration grouping as well as the communitarian competition policy. The EU Integrated Global Competitive Force Index will help understand what the integration grouping’s competitive force means and whether the process of interstate integration of countries contributes to enhancing the competitive force of an individual country and the integration grouping as a whole. To calculate the EU Integrated Competitive Force Index, we will analyze the Member States on 12 competitive strength criteria, and Global Competitiveness Report 2019 will serve as the basis for our study. According to our calculations, the EU Integrated Global Competitive Force Index is 72 points out of 100. Conclusion. The results of a comprehensive integrated assessment of the competitive force of 28 EU Member States demonstrate a high overall competitive force index of the grouping, indicating the EU’s impact on global competitive processes. The EU Global Competitive Force Index can be used both as an indicator of the separate international integration grouping’s development and as a global criterion for the effectiveness of interstate integration groupings in the transformation of international competitive relations. Discussion. The highlighting of the EU global competitive force is a requirement for the contemporary development of the global competitive environment, since interstate integration groupings are the main actors of the world economy, which significantly affect the distribution and growth of competitive force.

Varieties of capitalism, competition policy and the UK alcoholic beverages industry

This article informs a key aspect of the business-government interface; the evolution of competition policy and how firms adapt to it. Drawing on an extensive portfolio of inquiries, what constitutes ‘the market’ and the boundaries of the firm within it is described through the experience of the UK alcoholic beverages industry. In situating competition policy in its historical socio-economic context, this study traces three overlapping eras; family ownership and control, network and conglomerates organisation, and specialisation and financialisation. Issues emerge that inform wider debate, notably the nature of portfolio and network effects, a central and contested theme in contemporary competition policy.

Assessment of the State of Competition in Ukraine by the Results of a Survey of Domestic Enterprises

Formation and implementation of the state competition policy requires a clear understanding of the current state of the competitive environment, and the effectiveness of previous measures taken by the government.
 The article studies the state of the competitive environment in Ukraine based on the results of a survey of business executives, conducted annually by the Centre of Complex Research in Antimonopoly Policy. Responses of the executives allow assessing the degree of competition in the business environment. The survey finds that in Ukraine domestic competition is more important than competition from foreign companies.
 Although significant and moderate competition from domestic and foreign firms was felt by 73.5% and 35.3% of respondents, respectively, only 25.6% and 15.1% noted that competition resulted in lower prices and costs. Therefore, nowadays the most acute problem is not so much the presence of competition in domestic markets, but the effectiveness of competition policy.
 The survey conducted a research of respondents' assessment of the level of dominance in the region using the method of the World Economic Forum.
 A quarter of respondents said in 2019 that competition policy in their region was partially effective and stimulated competition in individual market segments.
 The results of the study showed an improvement in the enterprises' evaluation of the effectiveness of the state competition policy, which includes, first of all, the activities of the Antimonopoly Committee of Ukraine.
 The analysis can be used in the development of competition policy documents.

Advocacy of Competition in the Mechanism of State Regulation of the Economy

The multifaceted competitive policy promotes awareness of the importance of competition by society, ensures maximum transparency of state regulation, reduces the level of corruption and increases public confidence within activities of the competition authorities, helps developing self-regulation of economic entities. At the same time the mechanism of state regulation and self-regulation has its own instruments for improving the efficiency of advocating competition. Research of their peculiarities, instruments, role and interaction are important directions of modern scientific investigations and the purpose of this article.In this article a comparative method to study is usedfor common and distinctive features of advocating of competition in different countries and Ukraine. The results show that it is extremely important to create a system for advocating of competition in order to inform society, protect the attained level of competition in entrepreneurial activity, prevent or suspend, and then stop the abuses of monopoly position, the anti-competitive concerted actions of business entities, the anti-competitive actions of state authorities and unfair competition. The experience of economically developed countries convincingly suggests that such practices have a positive effect on the functioning of the competitive environment in which the interaction of economic agents takes place. The results show that there was a gap in implementation of economic policy in Ukraine and there is a gap between legally established norms on the implementation of competition policy and the practice of their application. To a large extent, this is due to the lack of well-developed strategy for economic development in Ukraine and, accordingly, the strategy for the development of competition policy.

Детермінанти формування конкурентної політики країн.

The article considers the formation of theoretical and methodological approaches to the study of the main determinants of the countries' competitive policy. The authors proposed the systematization of criteria for identifying situations of abuse of dominant position by monopoly firms. The methodical bases for the development of competition policy based on the definition of the objective of legal and economic protection of the market are substantiated.

УНАПРЕЂЕЊЕ ПОЛИТИКЕ ЗАШТИТЕ КОНКУРЕНЦИЈЕ У РЕПУБЛИЦИ СРБИЈИ

In the study the author observes and analyzes the current development of competition policy in Serbia and gives recommendations for improvement of this policy. Competition policy is seen in the narrow sense, and is concerned with the field of protection and prevention of distortion of competition, or the field of restrictive agreements, abuse of dominant position and control of concentrations. The aim of the study is to provide guidelines for development of competition policy of Serbia. Progress of competition policy is seen through improvements made in the area of competition law and strengthening institutions that implement laws. The results of the competition policy of Serbia are identified and analyzed through relevant international indicators and data from domestic and foreign reports. The conclusion of the author seen in the study is that the progress done in competition policy in Serbia is unsatisfactory and that this policy is ineffective. The aforementioned imposes the need to improve the domestic competition policy, which is the following: a change of focus and approach of competition policy; redefining the key areas of distortion of competition in the law; strengthening law enforcement institutions; and a better promotion of competition policy.

Beyond Belgium: Jacques Steenbergen's Contribution to Competition Law and Policy

For a competition agency to be visible and successful, it needs a face and a voice that are known and recognised beyond its remit as an authority in competition advocacy and sound economic judgement. Until not so very recently, it would have been unusual for the President of a national competition authority in the European Union (EU) to be well known beyond its jurisdiction. An exception to this rule—in the past—may have been the case of Italy, where a former Prime Minister was appointed as President of the authority in 1994. But even a number of years later, it would have been rare for competition law practitioners in a given country to be acquainted with the policies of other national competition authorities, let alone their staff. With the installation of the International and the European Competition Networks, this has now changed and this is, in particular, the merit of a small number of very well-known and charismatic personalities at the top of these agencies. One of these outstanding competition chiefs is Prof. Jacques Steenbergen, the President of the Belgian competition authority. He has now turned 65, and for this occasion, his friends and colleagues have put together an impressive Festschrift, which is called Mundi et Europae Civis. In recognition of Steenbergen’s exemplary professional track record as a leading academic, a private practitioner, a legal secretary at the European Court of Justice, and from 2007 onwards as the head of the Belgian competition authority, a further subtitle of the book in 21st century parlance could have been: Curriculum portarum versatilium. The 19 pages of bibliography collating the publications of Jacques Steenbergen place on record that competition law practice should not be isolated from other legal disciplines. Jacques Steenbergen has contributed articles on topics as varied as corporate restructuring, product liability, consumer protection, foreign trade law, constitutional law as well as on all aspects of Belgian and EU competition law. With hindsight, an article published in 1984 sounds almost prophetic: ‘The Court of Justice and governance in an Economic Crisis’, which Steenbergen co-authored with Mertens de Wilmars, the then President of the European Court of Justice. In the last almost 10 years of his professional career as the head of the Belgian competition authority, Steenbergen has been instrumental in making this authority an important hub in the network of European competition authorities, always somewhat of a primus inter pares given it’s not only geographic proximity to the European Commission. Three contributions in the Liber Amicorum authored by Bruno Lasserre, Andreas Mundt, and Wouter Wils are dedicated to this topic. There are further contributions on the institutional role of a national competition authority by Roger Witcomb on the situation in the United Kingdom as well as by Chris Fonteijn and Annetje Ottow on the independence of competition authorities from a global and from a Dutch perspective. The book provides an excellent panopticum of most of the current topics around competition policy and practice as well as other key issues on the EU political agenda such as political governance in the Euro crisis (contribution by Frans Vanistendael) and of the challenges of a new trade policy (contribution by Hugo Paemen). Other articles cover issues of procedure such as the contribution by Koen Lenaerts on the interplay between regulation number 1049/2001 and competition law-specific rules on access to documents alongside the contribution by Piet Van Nuffel on whether confidential business information enjoy the specific protection of a fundamental right. The book takes a keen interest in the prospective development of competition policy and practice into new areas of the law such as the inter relationship between sustainable development and competition law (articles by Jan Wouters/Laura Beke, David D’Hollander/ Kolja Raube, and Rene Smits). The book is rich in linguistic variety with articles in English, in French, and also in the Dutch language. It is an important source of reference and an ideal lectuur for a relaxing yet edifying extended weekend in the Hautes Fagnes.

Commitment Decisions in the EU and in the Member States: Functions and Risks of a New Instrument of Competition Law Enforcement within a Federal Enforcement Regime

Commitment decisions are a relatively new instrument of competition law enforcement both in the EU and in the Member States. They provide a competition authority with a tool to handle certain complex competition cases quickly and flexibly where the parties are willing to cooperate. Yet, commitment decisions under article 9 of Reg. 1/03 have also raised important concerns, as they allow for a development of competition policies largely outside the realm of judicial review. Not much attention has been given to the spreading of similar instruments at the level of the Member States so far. This paper sets out to compare the commitment decision policies and practices in the EU and in the Member States. At a practical level, commitment decisions are used by NCAs predominantly either as a substitute for the former conditional exemptions under article 101(3) TFEU and/or to implement a policy clearly outlined by the EU Commission – whether by way of sector inquiries, infringement decisions or commitment decisions. The latter use is unobjectionable where the relevant legal issues have been clarified by the EU courts; yet, where this not the case, and the NCAs implement a policy developed by the Commission outside the scope of judicial review, the concerns raised against article 9-decisions are aggravated. The concerns regarding the use of commitment decisions could be mitigated if NCAs would systematically weigh the interests of administrative efficiency that may argue in their favor against the public interest in public censure, deterrence and the development of legal doctrine which should constrain the use of commitment decisions. In part, NCAs have indeed formulated policies that require them to do so. Also, commitment decisions are arguably subject to stricter forms of judicial review in some Member States. In the medium run, the decentralized experimentation with different commitment decision policies may hold important insights also for the EU Commission and the Union courts.

Between Domestic Factors and the EU: Explaining the Emergence of the Turkish Competition Regime

With the adoption of the Law on the Protection of Competition in 1994 and the establishment of the Turkish Competition Authority in 1997, Turkey joined the ranks of a growing number of countries that have adopted competition regimes in the last twenty years. A combination of domestic and external factors helps to account for the emergence and the evolution of the Turkish competition regime. The adoption of competition law was a key condition for Turkey's Customs Union agreement with the European Union, and this conditionality played a crucial role in the adoption of the law and the establishment of the Competition Authority by helping Turkish policy makers overcome the opposition from domestic interests. The evolution of competition policy since then, however, can best be explained by domestic institutional factors and the Turkish Competition Authority's ties with international organizations working in the competition policy area.

Unfair Methods of Competition under FTC § 5: Beyond the Sherman Act and an Ex Post Model of Enforcement

The Federal Trade Commission is an agency that is independent of the executive branch but not of the judiciary. Although the courts have recognized expansive Commission authority, they have too often applied Sherman Act standards as if the Commission were the Antitrust Division. Three Commission losses from the 1980s retain undue influence although both the times and the Commission have changed. Unlike the Antitrust Division, the Commission has a mandate to push past the antitrust laws. Its institutional advantage lies in investigation and innovation, not in enforcement ex post. Its mission is to work at the cutting edge of economic theory, to engage in research and development of competition policy at the forefront of changing commercial circumstances. The article intends, first, to defuse the lingering in terrorem effects of the 1980s decisions and, second, to propose six initiatives for a bold Commission. Everything proceeds from the view that the Commission under section 5 of the Federal Trade Commission Act should enjoin conduct that is likely to displace the process of competition on the merits without legitimate business justification.

Book reviews: Tuna Baskoy The Political Economy of European Union Competition Policy: A Case Study of the Telecommunications Industry, Routledge: London, 2008, 242 pp: 9780415965255 £60 (hbk)

Tuna Baskoy The Political Economy of European Union Competition Policy: A Case Study of the Telecommunications Industry, Routledge: London, 2008, 242 pp: 9780415965255 60 [pounds sterling] (hbk) There is a widespread consensus on the importance of competition policy. The mainstream political right sees it as a necessary means of ensuring a free market economy, while for the mainstream left it is a way of curbing monopoly and the concentration of corporate power in capitalism. All see competition as necessary to promote innovation and to enhance economic efficiency, prosperity and social welfare. Competition policy is perceived as necessary because 'perfect competition' is not encountered in the real world, and firms often behave in ways that are detrimental to competition. Competition policy has thus become the central pillar of modern micro-economic policy, conducted mainly by technocratic agencies and paralleling monetary policy as the central pillar of macroeconomic policy. Most developed industrial nations have independent competition agencies, and the European Commission has significant supranational powers in the area. This all suggests that competition policy and its implementation is and should be a matter mainly for technical specialists, a perspective that is intellectually rooted in liberal theory of market competition, and that underpins much of the literature on competition policy. This book seeks to undertake a critical analysis of these assumptions grounded in critical political economy and drawing on the development of competition policy in the EU telecommunications sector. Baskoy makes a compelling argument that most studies in the large body of literature on competition policy take the liberal model for granted, and do not critically analyse the nature of either market competition or competition policy. This consensus and the assumptions of the liberal model, Baskoy argues, have led to a European market in telecommunications that is not highly competitive, and that has favoured larger corporate interests at the expense of broader social and consumer welfare. At the heart of the book is a critique of the notion of 'workable' or 'effective' market competition that is put forward by many mainstream analysts of EU competition policy, and which informs the European Commission's policy making. The model of workable competition purports to overcome some of the problems of the liberal model, notably the static focus on market structure and the unobtainable ideal of perfect competition. Workable competition focuses more on the process of competition, and involves a recognition that it can flourish in oligopolistic structures and that the dynamics of markets mean that competition policy might have to be adjusted during short-run falls in profitability to ensure longer-term sustainable competition. Nevertheless, Baskoy argues that workable competition shares some of the key weaknesses of the liberal model--in particular its failure to conceptualise market competition in terms of varying economic, social and political power--and the underlying assumption that the state is an independent and omnipotent body. In order to address these policy and analytical problems, Baskoy argues for the adoption of a more credible model of market competition. Drawing on radical traditions in the analysis of markets, notably Thorstein Veblen, the book suggests the need for a model of 'dynamic market competition' in which market competition is conceptualised in terms of multiple political, economic and social forces, and competing values and ideas. This offers the hope of a better understanding of market competition by policy makers and the hope of better competition policy that might increase social welfare, rather than the welfare of those with economic power. …

Competition Law and Policy in Senegal: A Cautionary Tale for Regional Integration?

This article surveys the development of competition policy in Senegal since 1994. It discusses the original Senegalese competition law and its early enforcement and the pre-emption of Senegal’s competition law enforcement by a decision from the West African Economic and Monetary Union (WAEMU) Court of Justice. Because Senegal had begun to develop competition law enforcement competency and the WAEMU is severely lacking in competition law enforcement resources, the pre-emption decision has been a disaster for competition policy in Senegal. Participation in WAEMU is on balance beneficial to Senegal and the Court of Justice is unlikely to revisit its opinion, so this paper examines ways Senegal may rehabilitate competition policy and promote liberal markets within the boundaries of the Court of Justice opinion. While not ideal, use of sector-specific regulations, criminal penalties for cartel behaviour, and aggressive pursuit of competition investigations with an eye to forcing WAEMU action could all provide the necessary oversight to open and preserve liberal markets. The Senegalese National Competition Commission should also undertake appropriate studies to develop a more comprehensive understanding of the Senegalese economy and the competition problems it faces.

Toward an Expansive Reading of FTC Act § 5: Beyond the Sherman Act and an Ex Post Model of Enforcement

This paper is an edited and lightly footnoted version of Remarks made at a session convened during the American Antitrust Institute’s most recent annual conference. The session was entitled “Can FTC Section 5 and E.U. Article 82 Converge?” The paper distinguishes between the “domestic question” of whether FTC Section 5 should be interpreted to go beyond Sherman Act Section 2, and the “cosmopolitan question” of whether convergence with Article 82 is desirable and achievable. The paper focuses on the domestic question; to the extent an expansive use of Section 5 would foster convergence, that would be a side benefit. The paper asserts three propositions: First, there is a strong and undisputed historical basis for the view that the FTCA is something different in kind from both the Sherman and Clayton Acts. Second, in this light, the FTC’s institutional character is properly understood as a competition commission to investigate, report, advise against, and if necessary stop practices deemed unfair methods of competition, ex ante, in their incipiency. The FTC is not an antitrust enforcement agency like the DOJ Antitrust Division. Third, federal court decisions beginning in the 1960s unanimously support the view that the FTC Section 5 and its enforcement by the Commission legitimately serve competition policy understood more broadly than antitrust law, i.e., than the Sherman Act. In sum, the FTC has a long-standing Congressional mandate and judicial invitation to be bold, to push past the antitrust laws, to investigate and stop in their incipiency “unfair methods of competition.” The Commission should be an innovator and investigator rather than an enforcer; it should spend significant resources working at the cutting edge of economic theory and legal doctrine. The FTC mission, properly understood, is to engage in research and development of competition policy at the forefront of changing commercial circumstances.

Globalisation and the rise of 'economic nationalism': takeovers and regulation within the European Union

The globalisation of markets, particularly the liberalisation of financial markets, has facilitated merger and acquisition activity on a global scale. New financial instruments and the growth of sovereign wealth funds have raised questions regarding the national security and the loss of sovereignty over key economic sectors. The European Union in its ambitions to complete a single market set out to establish a level playing-field: to enhance competitive performance. Policies towards mergers and takeovers were agreed by member states after many years of negotiation. These have encountered institutionally, embedded national differences resulting in some cases in transposition into national law facilitating greater national protection. This article will review the evolution of competition policy and its recent modernisation in the context of liberalisation and the Lisbon agenda. It will analyse the difficulties of harmonisation with the recent extension of liberalisation to include utilities, which in the aforementioned global context of heightened anxieties, has engendered a revival of 'economic nationalism'. This is exemplified in the current French position towards restructuring in the energy sector and its continued protection of 'national champions'.

The Role of Competition Policy in the Promotion of Economic Growth

This essay discusses the role that competition policy can play in promoting economic growth. The essay begins by outlining the main components of modern antitrust policy. The essay then discusses the major aspects of an economy that contribute to economic growth and shows the ways that competition policy can favorably influence economic growth. Next the essay discusses industrial policy, as a set of policies that are in contradiction to competition policy and describes the tensions between them. Finally, the paper discusses the role of economics and economists in the development of competition policy in the U.S. and highlights some major advances in U.S. competition policy (to which economics and economists have contributed), which have made competition policy more consonant with economic efficiency (and economic growth); in addition, some potential improvements that could promote the effectiveness of competition policy even further are proposed.