This presentation by Prof. Allan Fels from the University of Melbourn, Australia was made during the discussion on "Independence of competition authorities - from designs to practices" held at the 15th Global Forum on Competition on 1 December 2016. More papers and presentations on the topic can be found out at www.oecd.org/competition/globalforum/independence-of-competition-authorities.htm

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OECD GLOBAL COMPETITION FORUM 2016
INDEPENDENCE OF COMPETITION AUTHORITIES
Competition Agencies:
What if they are not independent?
And are there any disadvantages to being independent?
Professor Allan Fels AO and Hilary Jennings
Paris, France

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KEY ISSUES
1. Some agencies are not independent, or only partly
independent. What should they do?
2. Are there any potential disadvantages from being
independent?
OECD GLOBAL COMPETITION FORUM 2016
INDEPENDENCE OF COMPETITION AUTHORITIES

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THE SPECTRUM OF INDEPENDENT
COMPETITION AGENCIES
Are all agencies fully independent?
• In some countries the concept of an independent agency of
any kind is unacceptable.
• In other countries independence may be token or symbolic
but not real.
• Even where agencies are considered to be highly
independent they may not be totally independent. There may
be some qualifications to their independence.
Note: Governments may wish to establish competition law
enforcement within government at the outset before setting the
agency free as confidence and experience grows.
OECD GLOBAL COMPETITION FORUM 2016
INDEPENDENCE OF COMPETITION AUTHORITIES

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WHAT HAPPENS WHEN AN AGENCY IS NOT
INDEPENDENT AND IS IN ESSENCE A
GOVERNMENT DEPARTMENT?
• Political interference / intervention.
• ‘Normal’ bureaucratic processes apply.
• consultation with many other parts of government in
decision making.
• other policies (e.g. industry policy) may influence
outcomes.
• the most powerful voices in government may prevail.
• There may be no or limited answerability to courts.
OECD GLOBAL COMPETITION FORUM 2016
INDEPENDENCE OF COMPETITION AUTHORITIES

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WHAT SHOULD BE DONE?
• Due process and procedural fairness.
• Transparency.
OECD GLOBAL COMPETITION FORUM 2016
INDEPENDENCE OF COMPETITION AUTHORITIES

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POSSIBLE DISADVANTAGES OF INDEPENDENCE
• Independence of a competition law enforcement
agency may make it remote from government.
• In such cases its advocacy may be relatively ineffective.
• it may lack information about potential anticompetitive
laws and actions being considered by government.
• it may lack a voice at the decision making tables.
• In some cases independence and remoteness from
government allows a less inhibited approach to policy
advocacy.
OECD GLOBAL COMPETITION FORUM 2016
INDEPENDENCE OF COMPETITION AUTHORITIES

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POSSIBLE DISADVANTAGES OF INDEPENDENCE
• Some agencies are designed so as to optimise their
independence whilst being engaged in government policy
matters.
• There can be a trade off of independence and remoteness
from government in many cases.
• Arguably the greatest failure of competition policy is the
extent of government imposed restrictions on competition so
the issue of optimising advocacy by competition bodies is
very important.
OECD GLOBAL COMPETITION FORUM 2016
INDEPENDENCE OF COMPETITION AUTHORITIES