5. PROPOSALS FOR IMPROVING PREDICTABILITY

This section contains a number of proposals that are developed as a consequence of the analysis concerning the current status quo concerning the predictability of European merger policy. These proposals are very general ones and they could entail sweeping changes. They are thus not developed with an eye on the probability of being implemented soon or in a piecemeal manner. Concrete, hands-on proposals will be developed in chapters D and F of this study, explicitly taking the arguments developed throughout the course of this study into account.

The goals to be achieved by a certain policy will influence predictability in a number of ways: first, predictability is a function of the precision with which certain policy goals are described in relevant legislation. It is secondly a function of the number and consistency of goals described there. To give an example: if competition policy is not only to establish and (or) maintain a high level of competition, but is also to protect competitors, small and medium-sized companies, employment rates, a balanced geographical industry structure, etc., lots of trade-offs will have to
be made. A multiplicity of partially inconsistent and difficult to operationalise goals is a sure means towards uncertainty and unpredictability. Therefore, competition policy should be oriented at one single goal, namely the maintenance of a high level of competition. This goal should be spelt out as clearly and precisely as possible.

Given a precise and clear goal of competition policy, a competition agency needs instruments to realise this goal. The instruments must, of course, be rule-based themselves. As discussed above, they should be as universalisable as possible. Universalisable rules guarantee that like cases are treated likewise. They further guarantee that anyone interested in knowing whether a certain action is legal or not is able to ascertain the legality of various actions.

A precise goal and universalisable rules notwithstanding, a competition agency will still have some discretion in making decisions. If it is used in ways that are not understood by observers of the agency, this will, of course, not lead to predictability. In order to achieve predictability, the procedures used by the competition agency should thus be as transparent as possible.

The separation of powers has been a hallmark of liberal societies ever since Montesquieu. There are good reasons for a functional separation of powers, and there is convincing empirical evidence that it has beneficial effects for the affected societies. The missing separation of powers within the European Union is said to be one reason for its current legitimacy problems.7 What is true for the European Union in general is also true for its competition policy: the separation of powers needs improvement. There are a number of reform options: the creation of an independent competition agency is probably the most radical one. Others include the more systematic division of legislative, executive and judicial functions. A number of more specific proposals have been made and this is not the right place to discuss them in any detail.8

Lastly, legal protection that is not granted within a reasonable period of time amounts to the non-existence of legal protection. It is thus important to speed up decision-making within the Court of First Instance. Whether the creation of a specialised competition chamber within the Court of First Instance would be an adequate remedy need not concern us here.