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Kovacic, William E. --- "Competition Agencies, Independence, and the Political Process" [2011] ELECD 353; in Drexl, Josef; Kerber, Wolfgang; Podszun, Rupprecht (eds), "Competition Policy and the Economic Approach" (Edward Elgar Publishing, 2011)

Book Title: Competition Policy and the Economic Approach

Editor(s): Drexl, Josef; Kerber, Wolfgang; Podszun, Rupprecht

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448841

Section: Chapter 16

Section Title: Competition Agencies, Independence, and the Political Process

Author(s): Kovacic, William E.

Number of pages: 21

Extract:

16. Competition agencies,
independence, and the political
process
William E. Kovacic*

1. INTRODUCTION

A common assumption in the design of competition policy systems is
that public enforcement agencies should be politically `independent'.1 A
jurisdiction is said to achieve the requisite independence by ensuring that
the competition authority can make decisions free from the influence of
elected officials (e.g. heads of state or legislators) or appointees subject to
their control. In principle, the condition of independence improves policy
outcomes by enabling the enforcement agency to exercise its authority
according to widely accepted competition policy principles and to resist
demands that it serve special interests at the expense of the larger public
welfare.
At a very general level, there seems to be a rough consensus about what
political independence ought to mean in practice. A competition agency
should not exercise its power to prosecute ­ to open files, to issue com-
plaints, to impose sanctions ­ to satisfy the preferences of legislators, pres-
idents or departmental ministries. At the same time, competition agencies
should be accountable for their decisions ­ accountable to the public and
subject to checks and balances (such as judicial review) that press public
officials to operate within boundaries of authority set by constitutions and
statutes and to exercise their delegated powers wisely. There is an inherent
tension between the preservation of an acceptable level of independence
and the attainment of necessary levels of accountability. Measures that
ensure complete freedom from interference from political forces also can
diminish accountability and ...