Public interest criteria and competition law


The S.A. Competition Commission‘s Trudi Makhaya (LinkedIn and Twitter) posits in this opinion piece in the South African “Business Day that an effective antitrust / competition-law policy can be seen “as an exercise in ’embedded autonomy’.”

Anti-competitive restraints, due to cartels or monopolistic overcharges or output restrictions, have a (relatively) more serious effect on poorer elements of the country’s economy than on the wealthier parts of society, Makhaya argues.  This fact is reflected in the SACC’s “prioritisation framework“, which represents one of the policy tools used by the South African competition authorities that is decidedly outside the “traditional” (read: occidental, euro-U.S. centric) approach to antitrust matters.  In the latter, solely economic (as opposed to social) factors are deemed to play a role that merits the attention by the enforcement agencies.

In a recent roundtable interview with Global Competition Review,‘s own editor, John Oxenham, pointed out a parallel facet of merger review in South Africa, stating: “More often developing regimes face difficulties in ensuring their legitimacy or face glaring socio-economic challenges when considering antitrust issues. In South Africa for instance, historical imbalances continue to force the government on a broad-based growth path. The particular public interest criteria which are found in merger control and which the South African authorities are enjoined to use in merger control have, somewhat uniquely, been utilised by South African government departments in intervening in cross-border mergers.”

In light of the eurozone’s economic turmoil and the United States’ rather stagnant emergence (if any) from its recession, the notion of social / public-interest criteria in antitrust law are quite a timely subject.  We are eager to hear our readers’ opinions on this topic…

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