Some of the restraints to competition, particularly in developing countries, originate in certain practices of the State, are State-related or hybrid restraints. Competition law enforcement is limited to the area defined by the competition law. Therefore, to the extent that State-related action is beyond the reach of antitrust, the purview for antitrust can be very small. In many jurisdictions, antitrust can catch anticompetitive state, state related and hybrid restraints to varying degrees. Principles of law in this area vary in the extent to which they give more space to competition or more space to state discretion.
Competition law enforcement and the State is a very important area and one in which there is insufficient guidance for working out principles for the rule of law and their application in this context.
The outcome of research work in this field could be translated into assisting particularly developing countries in formulating new laws and applying the existing ones in order to deal with State-related anti-competitive practices.
The reasons why the State must be free to act in legitimate public interest, even if competition is sacrificed, will certainly be considered. This project does not aim at pushing everything into antitrust but to consider the limits of antitrust as well.
A number of jurisdictions responded to a questionnaire that, amongst others, contained the following questions:
- Does your competition statute cover state-owned entities and other entities in which the state has an interest?
- Does your competition law prohibit certain anticompetitive acts of state bodies such as administrative authorities?
- Does your competition law apply against the state or officials of the state who are complicit in bidding rings, preferences or other anticompetitive corruption in the awarding of state contracts?
- Do you have a success story in which your competition authority has applied the competition law to catch serious state or state-related restraints?
The objective of this project is to come up with suggestions, by studying detailed responses, on how to ensure that competition law covers State-related anticompetitive activities and is enforced against such practices.
Phase 1:Drafting and sending out a questionnaire on the competition law and the State to competition authorities throughout the world, and collection of responses.
Phase 2:Review and analysis of the responses to the questionnaire.
Phase 3:Findings and recommendations: Formulation of recommendations on how to make sure that competition law covers State-related anticompetitive practices and is enforced against such practice
Current Phase of Implementation
The project has been completed and as well as the publications above, is elaborated in the article, Eleanor M. Fox and Deborah Healey (2014): When the State Harms Competition -The Role for Competition Law, 79(3) Antitrust Law Journal, p. 769.
This article was the recipient of the Best Academic Article on General Antitrust at the 2015 Antitrust Writing Awards.
Professor, School of Law
New York University, USA
Associate Professor, Faculty of Law
University of New South Wales, Australia