Addressing the Legitimacy-Problem of Competition Authorities Taking into Account Non-Competition Values

Supervision Practice in the Face of Emerging Health Risks: How Market Dynamics are Forcing Enforcement Officials to Stretch their Mandate

“…The supervision agency's pressure is not based on a legal standard and it is usually not executed through a formal legal decision that entitles the regulatee to file an administrative complaint or appeal to an administrative court in order to obtain clarity on the extent of its obligations. 59 From an ethical perspective such an interaction may be more problematic as the supervision agency exerts more pressure. Factors that impact this degree of pressure include the threatened or implied consequences of unsuccessful negotiations and the supervision agency's 'tone of voice' during this negotiation.…”

Doing Good Together: Competition Law and the Political Legitimacy of Interfirm Cooperation

“…18 The main reasons are that protection of health, social cohesion, and the environment are difficult to monetize: expressed in monetary terms in a similar vein as the consumer welfare impact. Also future benefits are not generally considered beyond the short term, and benefits not accruing to the consumers bearing the higher price are not generally taken into consideration (Gerbrandy 2017). Parallel to the legal debate, there is an economic debate about whether economic theorizing must be confined to consumer welfare or can be broadened so as to allow both consumer and nonconsumer welfare into the economic calculus, a so-called total welfare approach (Kerber 2007;Baarsma 2011;Kaplow 2012).…”

“…Interfirm cooperation which has included government representation in its gestation phase, or includes continuous NGO involvement and monitoring, might receive less intense scrutiny than where this involvement is absent. Regulatory agencies might also enhance the legitimacy of their decision-making procedures by including a form of direct democratic participation (Gerbrandy 2015).This is especially salient where a balancing act leads to a stalemate between the different interests involved and the discretionary power of the regulatory agency or court is greatest. The challenge for both firms and agencies would be to provide both clarity of reasoning and transparency in the balancing act involved, so as to allow for a maximally informed third stage of legislative oversight, in those (we expect) rare instances where it will take place.…”

“…Interfirm cooperation which has included government representation in its gestation phase, or includes continuous NGO involvement and monitoring, might receive less intense scrutiny than where this involvement is absent. Regulatory agencies might also enhance the legitimacy of their decision-making procedures by including a form of direct democratic participation (Gerbrandy 2015). This is especially salient where a balancing act leads to a stalemate between the different interests involved and the discretionary power of the regulatory agency or court is greatest.…”