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This chapter analyzes the emerging jurisprudence of Indian merger control regime in terms its nascent antitrust/competition law. Drawing upon the interdisciplinary methodology of law-and-economics, it explores the historical evolution of the merger control regime and the politics of corporate lobbying and its impact upon the Indian merger control regime. In this context, it also analyzes the underlying economics of the Indian merger control regime and the inherent contradictions emanating from the politics of corporate lobbying and the inchoate philosophy manifest through the precedents. The chapter indicates that the implementation of the merger control regime in India is a mess and currently exhibits kamikaze tendencies. India will take some time to work out the poor design of the merger control regime.

This chapter provides an overview of the components that are considered necessary for a modern framework for competition policy. It summarizes how over the last years the European Union has modernized the legal instruments of competition policy in the areas of antitrust, merger control, and state aid control in order to allow for a more economic approach, to increase transparency, and to improve predictability. The chapter also explains how DG Competition has improved its mission, objectives, internal structures, and processes to align these more closely with the requirements of a modern competition policy institution. In particular, it discusses the benefits of prioritization, a more sectoral organization, a project-based allocation of resources, the setting up of peer-review panels, measuring performance and impact and demonstrating the added value of competition policy to citizens. It argues that competition authorities must constantly re-assess the components that are decisive for their functioning in the light of changes in their environment.

The Commission’s relative autonomy in rule-making and enforcement is central for understanding the dynamics of EU competition policy. This chapter explains the evolution of Commission control from a historical-institutionalist perspective: Member states’ basic rationale for assigning independent powers in competition policy to the European Commission is well captured by theories of functional delegation. Yet, what is regarded as a major source of Commission power today, that is the vagueness of many Treaty provisions, was originally perceived as a weakness of European competition policy. Policy entrepreneurship by the Commission and supportive jurisprudence of the European Court of Justice were necessary to gradually translate Treaty rules into actual EU competition policy and to lock-in advances in integration. As an unanticipated result of the growing autonomy of EU competition policy, the Commission has become increasingly confronted with the demands of third parties such as firms and other competition authorities. While these demands impose new constraints on the Commission, they at the same time strengthen its position vis-à-vis member state governments.

In Chapter 7, David Reader observes that the introduction of the Enterprise Act 2002 formally ended a much maligned public interest approach to merger control in the UK, oft-criticized for the uncertainty permeated by ministerial decision-making. In its place came a new competition-based test to be applied by independent competition authorities with new powers and resources at their disposal. Despite encountering some teething problems as the authorities sought to interpret their respective roles at Phases 1 and 2, the reforms have proven largely successful in delivering one of the most transparent and predictable merger regimes in the world. This chapter reflects on the evolution of UK merger control under the Enterprise Act, observing that a combination of major—and finer-tuning of the competition authority’s Phase 1 enforcement powers has enabled it to effectively deliver upon its mandate. New challenges lie in wait, however, and Reader stresses that the CMA must be allocated the resources and statutory remit to contend with the increased workload implications presented by Brexit and the novel theories of harm associated with mergers in the digital sector. Of further concern are recent reforms to extend the national security public interest ground, which risk a return to the ‘dark ages’ of opaque ministerial decision-making if further safeguards are not implemented.

In this chapter the merger and State aid rules are examined. Both types of rules pursue the same general objective as antitrust, based on achieving and policing the internal market. This guarantees a basic level of coherence between the different instruments of EU competition law. However, merger and State aid control remain centralized and based on an exemption monopoly with regard to the compatibility with the internal market in the hands of the Commission, with a limited role for national authorities. Although national courts play an increasingly important role in State aid, they remain dependent on the Commission for deciding on individual exemptions. Because of conflicts of interest at national level it is unlikely that the modernization example of antitrust, based on decentralization and a directly effective legal exception, will be attempted here.

This chapter focuses on the competition policies of selected countries in Eastern and Southern Africa, specifically Kenya, Namibia, Botswana, Tanzania, Zambia, Zimbabwe, Malawi, and the island of Mauritius. The eastern and southern countries’ competition authorities span a range of functionality, from very high to almost inert. Even the highest functioning competition authorities face severe challenges in terms of financial and human capital, corruption, political pressure to favor government cronies and vested interests, and sometimes war and bankruptcy. Other challenges that competition authorities face concern the privileges of state-owned enterprises (SOEs), corruption through government procurement, and a plethora of not always transparent cross-border restraints. Even though their agendas are crowded by mandatory duties of vetting mergers and authorizing agreements, the best of agencies carve out precious time to identify the most harmful market obstructions and develop strategies to solve them.

Chapter 4 discusses competition law, which offers one of the most prominent examples of the EU’s global regulatory hegemony. This chapter first introduces the key aspects of EU competition law. It then explains why the EU has chosen to build an extensive regulatory capacity in this area, illustrating how competition law forms a critical dimension of the EU’s broader, single market program. Following that, it offers examples of the de facto and de jure Brussels Effects pertaining to competition regulation. These examples illustrate that the de jure Brussels Effect has been extensive. At the same time, the occurrence of the de facto Brussels Effect often turns to the question of non-divisibility, at times enabling while at times limiting the global effect of EU competition rules.

This chapter details how eight nations of Western Africa—Senegal, Mali, the Ivory Coast, Benin, Togo, Niger, Burkina Faso, and Guinea Bissau—transformed from government-controlled economies to market economies. The French West African states have adopted laws to open markets and protect competition, often at the behest of the World Bank and the International Monetary Fund (IMF). However, the project has been set back by political and economic instability, the lack of human and financial capital, and regional preemption of domestic competition law. It is a striking fact that there is virtually no competition law enforcement in French West Africa and no merger control law. The obstacles may ultimately be overcome with focus, leadership, will, and a reset of the institutional environment to allow national law to work hand in hand with regional law.