In Search of Congruence Between Legislative Purpose and Administrative Policy

Wednesday, January 1st, 2003 at 12:00 am by Stephen M. Axinn
Stephen M. Axinn, In Search of Congruence Between Legislative Purpose and Administrative Policy, 2003 Colum. Bus. L. Rev. 431

As we meet here today, the European Commission is reacting to the severe spanking it has received with the reversal of three recent merger decisions in the European Court of First Instance (“cfi”) –Airtours, Schneider/Legrand, and Tetra Laval/Sidel. Currently, there are a number of proposals being considered in the European Parliament and elsewhere to streamline appeals to the cfi, or even to establish a new court to supervise more closely the previously unchecked power of the European Commission to block mergers.

By comparison, in this country, of course, our enforcement agencies are powerless to enjoin a merger over the objection of the merging parties without independent confirmation from an Article III court. It is my thesis that the relatively high level of public approval for our antitrust review of mergers and the low level of public support in the E.U. can largely be ascribed to this key procedural difference. I believe that the process of presenting a case to a neutral, non-political court not only results in better legal doctrine, but also gives the public and their elected representatives a sense of fair play. No system that fails to give the merging parties an effective opportunity to test the prosecutor’s theory in a neutral forum can command public support for very long.

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Formed Axinn, Veltrop & Harkrider LLP