Ariel Ezrachi warns about the rising trend of political instrumentalization of antitrust and competition enforcement and its consequences.
Competition law enforcement has taken center stage in the last decade, driven by high-profile enforcement actions in the European Union, United States, United Kingdom, and elsewhere. With over 125 competition law agencies worldwide, enforcement has played a key role in shaping markets and business activities. Remarkably, despite ongoing policy debates on the scope and limits of competition law, and despite a multitude of enforcers implementing laws with varying goals and a range of intervention ideologies, the discipline has shown a growing sense of convergence.
Of course, not everything is rosy, and some inconsistencies in analysis are unavoidable due to differing economic and legal contexts as well as various theories of harm. Occasionally, the legitimacy of given enforcement action has been pressure-tested, with claims of favoritism or bias at domestic or international levels. But significantly, these friction points have not undermined the foundations of the discipline and have been defused through transparency, dialogue, and international collaborations that have fostered a convergence of core assessment benchmarks.
The formation of a common international “competition law language” has been crucial to the predictability and rigor of the discipline. By and large, the ability to sustain a coherent analytical framework, implemented by independent enforcement agencies, has ensured the legitimacy of competition law enforcement.
The rise of political instrumentalization
But increasingly, a change is in the air: competition enforcers face growing political pressures that dilute their independence and subsequently risk undermining the legitimacy of the discipline. These pressure points reside outside the ongoing ideological debate on the scope and nature of enforcement. Instead, they reflect a process of political instrumentalization which overrides the independence of the competition agency.
To be clear, it is not contested that governments, in exercising their mandate, can steer the enforcement agenda, promote certain ideologies and industrial policies, and advance a range of goals (some of which may be inconsistent with market competitiveness). When conducted transparently and within the boundaries of the law, governmental interventions guide enforcement trajectory without undermining its integrity. Furthermore, in many jurisdictions, governments can use “public interest” or similar interventions to override decision-making on a given case in a transparent and structured way.
But political instrumentalization is different. It is an external intervention that bypasses the agency’s independent voice, often in an unstructured manner not accounted for in legislation. It is detached from the legitimate debate on the scope and range of values promoted by competition law. Being outcome-driven, it often disregards the analytical integrity of the competition assessment and distorts enforcement outcomes.
At times, instrumentalization may reflect a political attempt at a “quick fix” with the best intentions—a way to advance short-term goals that may be inconsistent with the agency’s enforcement agenda. At other times, it may be part of a power grab, overriding agency independence to achieve political goals or financial gains.
Even when pursued with the best intentions, instrumentalization does not reside in the vicinity of the ideological debate on the soul and goals of antitrust, nor within its analytical envelope. Rather, it defies the competition language and, in doing so, undermines the stability and legitimacy of the discipline. Its pursuit may reflect misplaced overconfidence in the stability of competition enforcement. An assumption that society’s trust in the predictability and fairness of competition law enforcement would withstand political intervention. It reflects obliviousness to the ripple effects that flow from diminished analytical integrity, resulting in market distortions and the loss of consumer and business trust.
Political and market distortions
Instrumentalization may come in different forms and with varying levels of intensity. A few examples from recent months illustrate the range of interventions and adverse effects.
Take, for example, the U.K. government’s intervention earlier this year to pressure the Competition and Markets Authority to taper its enforcement appetite. The move reflected the government’s frustration with the CMA not fully adjusting its practice, procedure, and approach to reflect the government’s “growth agenda.” Intense political pressure led to the resignation of CMA Chair Marcus Bokkernink. The intensity of the government’s intervention and rhetoric—public statements on the U.K. being “open for business” and demands for “pro-business decisions”—raised doubts about the CMA’s independent voice. More recent comments by the chancellor of the exchequer, Rachel Reeves, on her decision to “get rid of” the CMA chair, and framing regulators as a “boot on the neck” of business, further diminish the perceived independence of the agency and reflect a political drive to limit the UK competition enforcement footprint.
Across the Atlantic in the U.S., instrumentalization has also been visible. The Trump administration’s removal of Federal Trade Commissioners Rebecca Slaughter and Alvaro Bedoya, both Democrats, has cast doubt on the independence of the FTC and triggered uncertainty as to its subsequent enforcement actions. U.S. District Judge Loren AliKhan, who held the removal to be illegal, described it as an attempt to turn the FTC into “a subservient agency subject to the whims of the president and wholly lacking in autonomy.”
The pressures surrounding the U.S. Department of Justice’s appraisal of the HP/Juniper merger were just as striking. Initial objections to the transaction, due to its potential to eliminate fierce head-to-head competition in the AI-driven networking industry, were quashed by senior Trump administration officials, leading to the dismissal of two deputies of Assistant Attorney General Gail Slater. One of the deputies, Roger Alford, criticized this intervention as a “pay-to-play scandal” and accused Trump-connected lobbyists of influencing the settlement behind the scenes, effectively overriding antitrust analysis for political or financial reasons.
Instrumentalization treats competition enforcement as a lever that can be detached, at will, from its analytical framework. It prioritizes short-term political goals, irrespective of the long-term adverse effects on competitiveness, innovation, and consumer welfare. It does so in an unstructured manner that undermines analytical integrity and the perceived independence of enforcement agencies.
Such an approach not only weakens the credibility of the discipline but also increases the potential for international friction. Treating competition enforcement as a negotiable asset increases its susceptibility to international pressure. In the wake of current trade tensions between several jurisdictions, illustrative were reports that the EU Commission had allegedly delayed the announcements of its decision in the Google AdTech case due to fear of US retaliatory trade measures.
A complex geopolitical drift
These anecdotes are part of a broader ongoing geopolitical drift in which a multitude of formal and informal pathways for political influence have emerged in various jurisdictions. Addressing these trends is far from easy. When executed with skill, instrumentalization may not always be apparent. It can reside behind legal formalism, national security arguments, or populist rhetoric. At times, even when evident, some are tempted not to oppose it. This may be the case when the outcome aligns with one’s ideology or serves the economic interests of groups or individuals. At times, those who appreciate the fragility of the competition discipline may be tempted to downplay the adverse effects of instrumentalization. In an attempt to safeguard the perceived integrity of competition law enforcement, they may frame political intervention as a momentary anomaly, a blip in an otherwise predictable linear trajectory.
But what makes instrumentalization truly challenging is that it is a symptom of broader societal and political trends. The decline in the rule of law, political accountability, and democratic governance provides fertile ground for its intensification. The rise in corporate power and the private control over media outlets create powerful levers of capture and favoritism. Furthermore, the ability to influence the masses through targeting and manipulation provides effective ways for politicians and governments to reframe and legitimize these actions.
The corrosive effects of instrumentalization cannot be ignored. Once it takes hold in key jurisdictions, others will likely follow. If the trend of enhanced instrumentalization is left unopposed, it may initiate the downfall of unbiased and fair competition enforcement. Legal and economic standards will still be debated on a given case but may become secondary in the face of abrupt external interventions and capture. Ultimately, trust in fair and equal competition enforcement will erode, and with it, legal and business certainty. The negative externalities of these distortions will result in chilling effects on competition and investments.
While we cannot easily fix democratic governance and political accountability, we can do more to highlight the fragility of the competition discipline, its reliance on clear, predictable, and transparent rules, and the detrimental effects that flow from the loss of perceived agency independence. We must point to the dangers associated with a short-term political agenda, pursued without regard for long-term negative externalities.
Keeping calm and carrying on may not be a viable option. If left unchallenged, we may find ourselves pondering who pulled and who pushed the political levers, and which connections and lobbyists were crucial in triggering or suppressing investigations. If and when those doubts creep into our minds, we’ll know that enforcement as we knew it has ended. The real game will be played outside the analytical framework of antitrust, disregarding competition dynamics and welfare considerations, as politics, bargaining, leveraging, and corporate power dictate enforcement intensity and choices.
Author Disclosure: The author reports no conflicts of interest. You can read our disclosure policy here.
Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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