Anti-cartel regulation : the interests and objectives of enforcement
This is a reflection on the way in which the enforcement of a particular area of competition law and policy has evolved over a period of some 40 years and a comparison of the dynamic of enforcement as a process in itself with the objectives and interest inherent in substantive law and policy. It considers the way in which enforcement may become an objective in itself, creating its own professional interest and culture, to the extent of becoming in socio-economic terms a distinct enterprise or even ‘industry'.
This kind of reflection is prompted by observation of a number of recent enforcement trends in the field of competition regulation, such as the official encouragement of private claims in relation to anti-competitive conduct, and the development of leniency programmes and moves towards criminalisation in the sphere of anti-cartel regulation. Attempts to elucidate and account for such trends suggest that they may be predominantly top-down phenomena, led in particular by regulatory agencies. Globally such agencies have increased in number, and size and resources, and their increasingly strong sense of own identity is evident for instance in the European Competition Network established by the European Commission. An associated trigger for reflection is the amount of legal activity which is now generated by the business of competition enforcement, especially in the context of anti-cartel regulation, which may be regarded as the ‘sharp end' of such enforcement. As enforcement activity has produced increasingly sophisticated and resource-intensive processes of investigation, hearing and appeal, it is interesting to reflect on the generation of legal work and on the relationship between the regulatory and legal professions in this area.
Finally, it is then worthwhile to enquire critically into the outcome of these developments in terms of costs and benefits. We start with a view of what competition policy and law is designed to achieve and who is thought to benefit from the regulation of competition. At the same time it may be asked, looking more specifically at the ‘enforcement enterprise', who gains from that end-of-process activity : markets and the economy, the general public (as consumers or small traders for example), or the professional actors (regulators and lawyers) who are thought to serve these more fundamental interest?