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Decentralisation of economic law: an oxymoron

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The interest in decentralising governance is increasing worldwide. In Europe too, a policy of decentralisation is being applied. In economic law, notably in both the cases of EC competition and financial services law, new rules are in the process of being introduced. In competition law, the regulation on the implementation of the rules on competition has lead to a decentralised model of law enforcement. In financial services law, the directive on markets in financial instruments has proposed the introduction of a four-level rule-making model, which may represent a participative, decentralised approach, but has resulted in a centralisation of that process, while the enforcement remains decentralised. This essay provides a brief overview of these models of regulation. Then, it examines these regulatory structures and focuses on the question of the impact of the decentralisation process in the context of decentred understandings of regulation. It points to the paradox of law being decentralised where it is a centralised function and thus represents an oxymoron. The paper argues that decentralisation results in an oxymoron depending on the function of law considered. The overall purpose of the paper is to contribute to a better understanding of governance through decentralisation.

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