Chillin'Competition

Chile’s Fiscalía Nacional Económica needs no introduction. It is an inescapable reference in the competition law landscape. It was a real pleasure to take part in their Annual Competition Day, in an event that symbolically marked the end of Ricardo Riesco‘s successful tenure as Fiscal.

Francisca Levin, head of the merger division at the Fiscalía, run a panel on recent developments in the field, in which Ryan Danks (US Department of Justice) and myself shared our thoughts on a number of merger-related issues.

You can find a transcript of the whole exchange (in Spanish) here. You will see that we covered a great deal of ground, from the jurisdictional to the substantive (these are particularly interesting times for EU merger control).

The question that piqued Francisca’s and Ryan’s interest was the debate about the nature and scope of the SIEC test (this, in fact, is something that has recently been front and centre of discussions in Chilean competition law).

I tried to frame the legal issue as involving a choice between solid and liquid legal tests.

I explained that there are essentially two schools of thought regarding the scope of the SIEC test in EU merger control. Beneath the technicalities, this is the existential issue at stake in CK Telecoms.

One school of thought prefers what I term ‘liquid’ legal tests, that is, legal tests that lack definite boundaries and that do not prescribe a set number of conditions to consider in a given case. There are, instead, a number of factors that may or may not be relevant in a particular context.

The other school of thought prefers ‘solid’ legal tests, which define a fixed number of criteria against which the legality of administrative action is assessed, and which do not vary. As a result, agency leeway is more constrained.

The former approach favours accuracy and flexibility; the latter, predictability and administrability.

Which of the two will ultimately be embraced is, I told Francisca and Ryan, one of the most exciting pending issues before the Court of Justice.