Transatlantic disputes in competition policy : versions of liberalism or mercantilism v liberalism

SYNOPSIS Each year, the competition authorities in the United States and in the European Union review hundreds of merger cases. Some only concern one of the jurisdictions; some affect both. In a large majority of the multi-jurisdictional cases, the authorities agree on whether a deal should be approved or blocked. In a few, however, they do not. The main purpose of this thesis is to explain why disagreement occurs. Two competing strands of explanations are offered for how merger outcomes are reached. They part on the issue of whether competition policy is autonomous from societal interference. The first strand argues that it is, which makes technocrats in the competition agencies the central premise-setters. It is then asserted that the technocrats are guided by some version of liberalism – neo-liberalism or Ordo-liberalism – when making decisions. Different outcomes will thus be due to the application of different liberal ideas; this is the first hypothesis. The second strand of explanation takes as its starting point that competition policy is not autonomous. Rather, as any other issue, it is subject to battle between different interest groups. In merger reviews, the main groups of actors are identified to be state departments and agencies, politicians, and the politically appointed leaders of the competition agencies. The international dimension of multi-jurisdictional mergers could, it is argued, activate a concern for national security, wealth, and competitiveness – subsumed under the heading of neo-mercantilism. If this description of how decisions are made applies to at least one jurisdiction, it will offer an alternative explanation for why outcomes diverge (the second hypothesis). Through the empirical analyses of the US and EU competition regimes and two merger cases (Boeing/McDonnell Douglas and General Electric/Honeywell), the two strands of explanations are investigated. While no unambiguous conclusion is offered, it is demonstrated that the technocrats in the US and EU competition agencies act according to somewhat different liberal ideas. This can partially explain why they reach different outcomes in merger cases. At the same time, it is shown that under certain circumstances, neo-mercantilist interests trump any version of liberalism and that concerns for national security and competitiveness dictate outcomes