2.2.

What is Regulation?What is Regulation?

Sectoral Regulation and AntitrustSectoral Regulation and Antitrust

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Behavioural control. It may be applied to anyone’s behaviour (of private individuals and public entities); and may stem from private or public measures.

Sustained and focused control exercised by a public agency over activities that are valued by a community (Selznick).

Control by a superior: directive, public, centralized. The connection between regulation and collectivist systems (Ogus).

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► Acts of public agencies which control or alter the activity of markets (from subsides to measures restricting private property).

► Public command and control measures (such as: licenses, inspections, taxation).

► Regulation as opposed to primary legislation.

► The need for a broad definition, including both command and control measures and incentives.

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OECD definition:

“Regulation refers to the diverse set of instruments by which governments set requirements on enterprises and citizens. Regulations include laws, formal and informal orders and subordinate rules issued by all levels of government, and rules issued by non-governmental or self-regulatory bodies to whom governments have delegated regulatory powers”.

Antitrust laws and their enforcement are included.

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Differences as to aims and methods.AimsS.R.: corrects for the defects of markets.For instance, it provides for specific obligations of

operators having market power (such as interconnection or reasonable prices for basic services).

► Specific and positive provisions.

A.: maintains the conditions of a competitive market place.

► General and negative provisions: prohibition of cartels, monopolizations and abuses, mergers or take-overs substantially lessening competition. 5

Methods

S.R.: Rulemaking and Adjudication procedures based on preliminary consultation (notice and comment, or hearings), before independent or executive agencies.

A.: Adjudicatory and quasi-judicial procedures based on adversary method in Court or before independent agencies.

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─ Freedom of undertakings is protected.

─ Market power, that can emerge from that freedom, is forbidden and punished.

─ The usual end of administrative law: control on the exercise of public power (excès de pouvoir; judicial review on discretionary power).

─ The main end of antitrust agencies (both judicial and administrative): control on the exercise of private power (abuse of market power).

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