The ‘Blind Spots’ of Policy Implementation: Explaining Procedural Failures of Spanish Competition Authorities

Regulatory agencies not only make policy choices, they must also implement policy effectively. While the quality of agencies’ performance and policy choices are usually subject to ex-post oversight controls from the legislative and executive branches, the legal and statutory procedures followed by agencies to implement policies are commonly subject to judicial review of administrative actions. Judicial supervision represents a relevant analytical instrument to understand failures in the implementation of regulatory policies, as courts have the formal authority to set aside an agency’s choice issued under an unlawful process as well as the faculty to instruct an agency to reformulate an erratic decision. This study therefore sets out to explain why regulatory agencies fail to comply with legal standards in the policy implementation process. A relevant body of literature explains the causes of policy failures and poor implementation as a result of biases in organizational attention, which rests on a theoretical foundation of bounded rationality embedded in the decision making processes of public organizations. Moreover, recent advances within the study of executive politics and public management have developed the notion of ‘blind spots’ as the unknown inability to detect and process potentially critical information that might be fundamental to prevent poor policy implementation. Drawing upon this strand of research, this paper conducts a case study of judicial review appeals against Spanish competition authorities to explore the presence of ‘blind spots’ within cases where agencies failed to comply with legal standards. The research performs a content analysis of judicial review appeals against 433 administrative decisions issued by the Tribunal for the Defense of Competition (TDC); the National Commission on Competition (CNC) and the National Commission on Markets and Competition (CNMC), which were ruled as unlawful by the Spanish National High Court between 1990 and 2017. The examination aims to verify the presence of three theoretical organizational sources of ‘blind spots’: tunnel vision, imperious immediacy of interests and standard operating procedures. This study contributes to a deeper understanding of the causes of policy implementation failures of regulatory agencies, and the relevance of the paper is twofold: firstly, it introduces a measureable characterization of “failure” inherent to attributes of policy implementation rather to normative labels applied by stakeholders and political principals to assess an agency’s performance, and secondly it presents empirical evidence to verify the recent advances in public administration scholarship which provide theoretical insights relevant for a better understanding of bureaucratic behavior under organizational constraints.