ZARATE-PEREZ Anibal-Rafael| Thèse de doctorat | juin 2011
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The Independence of Competition Law Agencies,
Comparative Analysis Colombia, France, United States :
Although Competition Agencies‘ independence is commonly explained through the
necessity of objective expert decision-making, such necessity is not sufficient to
legitimize their isolation from the government. Absent of democratic foundations and
in apparent contradiction with the principle of Separation of Powers, ―Independent‖
Competition Agencies attain their legitimacy from the conjunction of multiple
institutional guarantees, control mechanisms and procedures, none of which may
overshadow the others. Any effort to determine the role that the idea of independence
plays in the institutional design of Colombian competition agencies requires an
examination of these guarantees and mechanisms, as well as a comparison of their
status to that of French and American agencies; whose institutional arrangement has
influenced the constitution of Colombian authorities. Whilst the components of the
independence vary in every analyzed jurisdiction (as there is not a unique
institutional scheme of ―Independent‖ Agency), this study reveals that certain
institutional guarantees recognized to agencies in France and in the United States,
which grant them vast discretionary decision-making power, are not present in the
specific case of Colombian agencies. Assuring a higher level of independence for
Colombian competition authorities, by conferring them some of these guarantees,
lean on a simultaneous effort to reinforce control mechanisms, procedures and
instruments for citizen participation in the regulatory process. The construction of the
independence of Competition Agencies – in both its organizational and functional
dimensions – commands the design of institutional constraints. Maintaining a balance
over these constraints to agency discretion not only constitutes a source of legitimacy,
but equally becomes an effective means to safeguard their independence from
external factors.
Keywords : Independance – Competition Agency – Economic regulation – Political
oversight – Judicial oversight - Judicial deference - Administrative discretion - Liability -
Democracy -Citizen participation – Independent regulatory agencies - Antitrust – Unfair
methods of competition - Federal Trade Commission.