Autorité de la Concurrence (Competition Authority)

The competition authority is generally an independent administrative authority (AAI). This is the case in France with the Autorité de la Concurrence (ADLC) which succeeded the Conseil de la Concurrence and which, like it, was designed to intervene ex post. Whatever the market considered, thus benefiting from almost universal jurisdiction over any economic activity of production, distribution and service, it can be seized or even self-seized when elements of anti-competitive behavior are alleged. The competition authority does not monitor the markets as such, nor does it build them or maintain their balance. These functions are precisely devolved to regulators. We can thus see that the competition authority has a much broader competence than that of the regulators, since the latter's office is limited to a sector while, conversely, the competition authority has a much weaker power than that of the regulators. regulators, since it has no ex ante powers and only intervenes on an ad hoc basis.

This distinction in no way precludes coordination between regulators and the competition authority, in particular because they can reciprocally transmit cases or information to each other, just as they can solicit each other for their respective opinions. The more competitively mature the sector for which a regulator is responsible, the more active this collaboration will be, as can be seen in telecommunications.

But things are not so simple, we will take two examples: first, the competition authorities, whether French (since the law on the modernization of the economy - LME of August 4, 2008 ) or European since the Community regulation of 1985, the competition authority operates merger control. This considerable function and power consists in assessing the conformity with the law of the will of two companies to come together (for example, by a merger). But, insofar as the competition authorities very often put conditions to accept the concentration, for example disposals of assets or behavioral commitments, we arrive at a kind of economic and industrial mechanic operated ex ante, comparable to a regulatory power. These commitments are in fact negotiated between companies and the Competition Authority: what are presented as unilateral conditions appear to be a kind of contract. More generally, the more the competition authority develops the technique of commitments, including with regard to anti-competitive practices, the more it contracts its behavior vis-à-vis companies, renouncing sanctions, that is to say abandoning its attitude ex post, to organize a new situation for the company adopted by it through its commitments, the competition authority then acting ex ante, behavior characteristic of a regulator.

Secondly, the European Commission, a multi-headed organization, on the one hand sanctions anti-competitive behavior and operates merger controls, and on the other hand, drafts the texts of the directives of the community regulations that the European Parliament and the European Council will adopt thereafter. However, in the regulated sectors, the European Commission adopts and writes dozens of directives and regulations to such an extent that it has become accustomed to designing them by “package”, apprehending developments in energy or regulation. environment, banking or telecommunications, etc., by packages containing several directives and regulations. In these texts, which therefore come under ex ante, the regulatory organizations of the sectors are deeply affected. This sort of Janus that the European Commission constitutes means that it is, at European level, both the Competition Authority and the Regulatory Authority. However, national competition authorities tend to claim that they are "small European commissions", which reinforces their tendency to want to regulate the economy. They come to propose in texts of “soft law” the concept of “competitive regulation”, which constitutes an oxymoron.