Tóth Tihamér: Independence of competition authorities

At a recent event on the importance of the independence of competition authorities I emphasized that independence should not result in isolation in an ivory tower, cut off from social and economic reality. Also, the more independent a public agency becomes, the more important it will be to guarantee transparency and accountability. Overall, the GVH has maintained its independence from undue business and government influence over the past 30 years. The structure of the GVH, resulting in a two tier defence line against undue influence served the interest of competiiton protection well. Among the challenges resulting from an unorthodox economic policy I mentioned merger control as an example. The 2013 amendment of the competition act allowed the government to adopt decrees exempting a transaction serving the undefined public interest from GVH review. The problem is lack of proper explanation of what constitutes public interest. Responding to a question, I recalled the KESMA decision of the Constitutional Court which sent the message that the judges are reluctant to second-guess public interest considerations of the government. I also talked about the ‘unorthodox’ agricultural cartel exemption.

Mr. Jasser, former Polish head of the competition authority, recalled some problematic mergers involving media and energy markets as examples that independence should exist not only on paper but should also function in reality. He agreed that the nomination of heads of agencies shall be a political exercise. Mr. Plahutnik, former director of the Slovenian authority, emphasized expertise, the recruitment of skilled persons as a key element to guarantee independence. The former heads agreed that it is much easier to create independence on paper. The challenge is to implement it in practice.

I had the privilege to discuss these matters together with them at an event organized by ASCOLA Central Europe (chapter director Prof Maciej Bernatt) and ASCOLA South-East Europe (chapter co-directors Prof Jasminka Pecotic Kaufman and Prof Alexandr Svetilicinii). For more information, see https://ascolasee.net.efzg.hr/