Integrate or Separate: Institutional Design for the Enforcement of Competition Law and Consumer Law

Abstract

Over the past ten years several EU Member States decided to integrate their competition authorities with their consumer protection agencies. In 2010, the Danish Competition Authority and the Danish Consumer Agency merged into the Danish Competition and Consumer Authority. In 2013 the Finnish Competition Authority and the Finnish Consumer Agency merged and the Netherlands Authority for Consumers and Markets (ACM) merged the Netherlands Competition Authority (NMa) with the Dutch Consumer Authority (CA) and the Netherlands Independent Post and Telecommunications Authority (OPTA). At the same time, other Member States separated the enforcement of competition law and consumer law, like the United Kingdom, where the former Office of Fair Trading (OFT) was abolished and the Competition and Markets Authority (CMA) was vested with mainly competition law enforcement functions. The OFT’s consumer law enforcement was handed to the National Trading Standards Board which coordinate consumer law enforcement with local and regional government’s trading standards departments. These institutional changes were the results of political decisions, based on budgetary concerns without in-depth investigation of the legal and economic implications for the enforcement of consumer and competition law.

This paper fills this gap by analysing different institutional models for separating or integrating the public enforcement of competition law and consumer protection and assessing possible synergies and drawbacks emerging from allocating enforcement powers in one or two public agencies. The aim of the paper is to map which normative criteria have to be assessed when the allocation of regulatory powers is decided on and on the basis of these criteria to assess how the allocation of enforcement powers affect the envisaged law enforcement. The paper analyses the likely consequences of a certain institutional arrangement for procedural norms such as the proportionality of remedies and the time of intervention and for institutional performance norms such as expertise, administrative efficiency, independence, consumer participation and accountability. This analysis is conducted against the backdrop of EU law and policy examining the impact of EU law and policy on Member States’ choices for designing institutions.

Keywords: Competition Law, Consumer Protection, Public Enforcement, Institutional Design, Administrative Authorities

JEL Classification: D18, L51, L40, K42