Merger Control and the Rule of Law

33 Pages Posted: 5 Nov 2009

See all articles by R.A.A. Khan

R.A.A. Khan

affiliation not provided to SSRN

Gareth T. Davies

Free University of Amsterdam - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: November 3, 2009

Abstract

This article asks whether competition law, in particular the law on mergers, should always be called law. It concentrates on merger control in the European Union but draws on US experience and history to provide ideas and to contribute to the framework for the analysis. The starting point is that competition law is increasingly located not in courts but in agencies: in the EU, the European Commission. These agency regulators take decisions based allegedly on economic theory, but which are non-predictable and nonreplicable; they do not provide a tight enough reasoning process to serve as a guide to action in future cases. Yet they are only marginally reviewable by courts. Finally, even insofar as identifiable and coherent rules exist for agency behaviour, their rule-like character is undermined by a culture of negotiation and compromise, which means that the link between rule and decision becomes even more tenuous and even less apparent to the nonparty. Over-reliance on questionable economics, as well as inadequately constrained agency behaviour, suggests that merger control is now the domain of ad-hoc decision making as much as it is of law.

Keywords: merger control, EU law, European Union

JEL Classification: k21, k33

Suggested Citation

Khan, R.A.A. and Davies, Gareth T., Merger Control and the Rule of Law (November 3, 2009). Erasmus Law Review, Vol. 2, No. 1, 2009. Available at SSRN: https://ssrn.com/abstract=1499183

R.A.A. Khan

affiliation not provided to SSRN ( email )

No Address Available

Gareth T. Davies (Contact Author)

Free University of Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands
+31 20 5986303 (Phone)

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