The Antitrust Bulletin

In recent years, regulators and politicians have raised questions about whether merger control is “fit for purpose” in the modern economy, and in particular about whether the consumer welfare standard remains the appropriate lens through which to assess transactions, or whether merger control should consider the potential impact of a transaction on broader public interest (PI) objectives, such as employment, the environment, data privacy, national security, or industrial or trade policy. Many merger control regimes globally already include a public interest component, and in thinking about whether it would be reasonable or appropriate to add or strengthen the PI component of a merger control regime, it may be helpful to look at regimes that already include a PI component to consider the ways in which this may be structured and whether these standards are likely to be successful in achieving PI aims. This piece surveys the existing merger control regimes with a PI component to identify lessons that may be useful for jurisdictions considering whether and how to expand a merger control regime to include PI.

For several years, a number of commentators have expressed concern that the U.S. has a growing market power problem. Further that dysfunction in the U.S. antitrust institutions, and their failure to protect competition, has damaged the economy. This Article outlines the principal flaws that this commentary attributes to U.S. antitrust policy (the “crisis in antitrust”), and some of the proposals offered to redirect it and restore it as a central tool of economic control. The paper’s main purpose is not, however, to debate the condition of competition in the US economy or the merits of the measures proposed. Rather, its objective is to identify the magnitude of the implementation challenges that the proposals for a major expansion of the U.S. antitrust program create and the policy implementation challenges that stand between these soaring reform aspirations and their effective realisation in practice. The paper suggests that even though these “implementation” issues are significant, they have been too quickly overlooked in the commentary. In our view the failure to focus on this important matter risks creating a chasm between elevated policy commitments and the capacity of responsible public to produce expected outcomes. The paper consequently acknowledges and addresses this implementation blindside. It analyses the important impediments that are likely, if not carefully addressed, to hamper delivery of the current proposals and proposes ways to overcome them.

While European Union (EU) competition law has long been understood as a variety of public interest law, the extent to which the rules can be applied directly to advance noneconomic public interest-oriented goals is more contentious. This contribution considers whether and how such concerns can be accommodated within the framework of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). It considers both the conventional approach to addressing public interest concerns within the analytical structure of the antitrust rules and also how broader public interest objectives have shaped recent EU-level enforcement efforts in three key sectors: the liberalizing public utilities markets, the pharmaceutical sector, and the digital economy.

The Australian Competition and Consumer Commission’s (ACCC) objective in enforcing Australia’s competition laws is to make markets work in the interests of Australians by protecting and promoting competition. From the ACCC’s perspective, it is poor public policy to introduce other objectives, such as reducing income inequality or political influence, into the enforcement of competition laws. If the enforcement of competition laws tries to achieve everything, in the end, it will achieve nothing. Moreover, there are other, more targeted instruments that are much better placed to achieve these other objectives. The ACCC is of the view that business conduct is likely to be anticompetitive if it interferes with the process of competition and harms trading parties on the other side of the market, or is likely to do so. The ACCC places great significance on these two issues to develop, test, and establish theories of harm to competition. While this is the case, the ACCC is of the view that it is not necessary to precisely quantify the degree of harm to establish that conduct is anticompetitive. Imposing such a requirement risks under enforcement of competition laws.

There have long been concerns and speculation that China’s competition authorities are using the Anti-Monopoly Law (AML) to pursue public interest objectives and prioritizing them over competition. This article explores whether and how public interest factors are relevant to the administrative enforcement of the AML. It shows that, rather than public interest, it is “state interest” and China’s state-centered approach to competition law that more aptly explains the AML and its administrative enforcement.

In the pursuit of national policy objectives aimed at social and economic welfare for all South Africans, South African competition authorities have to use competition policy to achieve industrial policy goals through the implementation of public interest provisions in the Competition Act No. 89 of 1998. The recent amendments to the legislation further bolster these broader policy objectives. This issue of the Antitrust Bulletin examines the history, development, and impact of public interest considerations in merger proceedings through an analysis of seminal cases and key legislative reforms. Public interest considerations constitute a significant component to the merger review process and may involve interests represented by the competition authorities, government and employees, trade unions, and other affected third parties.