MERGER CONTROL AND THE RULE OF LAW
Rachid Abdullah Khan & Gareth Davies
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 non-replicable; 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 non-party. 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.
