Integrate or separate. Institutional design for the enforcement of competition law and consumer law

Over the past years several EU Member States decided to integrate their competition authorities with their consumer protection agencies. Most recently, the Netherlands Authority for Consumers and Markets (ACM) has merged the Netherlands Competition Authority (NMa) with the Dutch Consumer Authority (CA) and the Netherlands Independent Post and Telecommunications Authority (OPTA) as from 1st April 2013. On the contrary, some other Member States separate the enforcement of competition law and consumer law. The United Kingdom will abolish the Office of Fair Trading (OFT) and merge its competition and national enforcement functions with the also abolished Competition Commission to form a new Competition and Markets Authority (CMA). The OFT’s consumer law enforcement roles are handed to the National Trading Standards Board which will coordinate consumer law enforcement with local and regional government’s trading standards departments. The CMA will retain consumer enforcement powers for some purposes and have responsibility for national oversight of the effective functioning of markets. These institutional changes are the results of political decisions, based mainly on budgetary concerns. National governments justified these institutional mergers by arguing that consolidated agencies can increase the efficiency and effectiveness of competition oversight and market regulation, enhance the importance of consumer and competition affairs in society, ensure corporate responsibility with regard to consumer interests and streamline administration. Similarly, the separation of institutions was justified by the reduction of complexity in the enforcement landscape, strengthening the effectiveness of law enforcement and achieving more cost-efficient delivery of consumer advice, representation and enforcement. These institutional and procedural changes seem to be experimental rather than programmatic and are instituted without investigating their impact on law enforcement. This paper discusses three different institutional models for separating or integrating the public enforcement of competition law and consumer protection and analyses the synergies and the drawbacks emerging from allocating enforcement powers in one or two public agencies. The aim of the paper is to assess how the allocation of enforcement powers affect law enforcement and map those normative criteria that have to be assessed when the allocation of regulatory powers is decided on. The paper analyses the likely consequences of a certain institutional arrangement for procedural norms such as the proportionality of remedies and the time of intervention and for institutional performance norms such as expertise, administrative efficiency, independence, consumer participation and accountability. This analysis is conducted against the backdrop of the regulatory state in EU law and policy and it extends to examine the impact of EU law and policy on the Member States’ institutional design as well as the EU’s constraining effects on institutional path dependence