ARTICLES: EUROPEAN COMPETITION POLICY - ANTITRUST ENFORCEMENT - DISCRETION - PRIORITISATION

Discretion and prioritisation in public antitrust enforcement, in particular EU antitrust enforcement

KEYWORDS

This paper discusses discretion and prioritisation in public antitrust enforcement, in particular in the enforcement of EU antitrust law. First, the paper defines the notion of discretion and discusses the rationale of discretion. Second, it examines the enforcement of Articles 101 and 102 TFEU by the European Commission, showing that the Commission has a broad discretion concerning the question which suspected or alleged infringements to pursue, but no discretion as to the content of the antitrust prohibitions. With regard to fines, the Commission has a significant degree of discretion, although this discretion is potentially neutralised by the General Court’s unlimited jurisdiction. Third, a brief comparison is made with and between the competition authorities of the EU Member States, highlighting divergence as to discretion to set priorities. The last chapter of the paper sets out various reasons for allowing competition authorities discretion to set priorities as to which cases of suspected or alleged infringements of the antitrust prohibitions they investigate and pursue, as well as a number of risks related to prioritisation.

I. Introduction 1. This article discusses discretion and prioritisation in public antitrust enforcement, in particular in the enforcement of EU antitrust law. 2. Article 101 of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements that restrict competition without redeeming virtue. Article 102 TFEU prohibits abuse of a dominant position. [1] The public enforcement of these antitrust prohibitions is the task of the European Commission and the competition authorities of the EU Member States (hereafter also: 'the national competition authorities'). [2] II. The notion of discretion 1. Definition 3. A competition authority (like any other administrative authority or agency) can be said to have discretion with regard to a certain matter (for instance whether to

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