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7 - Enforcement Discretion

Published online by Cambridge University Press:  06 June 2022

Or Brook
Affiliation:
University of Leeds
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Summary

This chapter examines the implicit-procedural balancing tools, embedded in the exercise of the competition enforcers’ discretion and priority setting powers. Modernisation has entrusted the Commission and NCAs with a new balancing tool in the form of their discretional enforcement powers. Moreover, it has incentivised the Commission and NCAs to direct their enforcement efforts towards clear-cut infringements of Article 101 TFEU, which are unlikely to be justified by overriding non-competition interests. The competition enforcers have used their detection, target, instrument, and outcome discretion to decide not to enforce Article 101 TFEU against other types of agreements even when they do not meet the conditions for an exception under Article 101(1) and (3) TFEU. As a result, investigations into agreements that raised balancing questions were often settled with negotiated remedies or terminated by closing the probe into the case altogether. The chapter investigated various aspects of priority setting, including the selection of a strategy for identifying anti-competitive behaviour; the choice of whether to open an investigation and pursue a case; choice of enforcement instrument (sector regulation, markets-work, informal opinions, and the effect on trade test); and selection of remedies (fines, commitments, and findings of inapplicability).

Type
Chapter
Information
Non-Competition Interests in EU Antitrust Law
An Empirical Study of Article 101 TFEU
, pp. 310 - 401
Publisher: Cambridge University Press
Print publication year: 2022

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  • Enforcement Discretion
  • Or Brook, University of Leeds
  • Book: Non-Competition Interests in EU Antitrust Law
  • Online publication: 06 June 2022
  • Chapter DOI: https://doi.org/10.1017/9781108946674.007
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  • Enforcement Discretion
  • Or Brook, University of Leeds
  • Book: Non-Competition Interests in EU Antitrust Law
  • Online publication: 06 June 2022
  • Chapter DOI: https://doi.org/10.1017/9781108946674.007
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Enforcement Discretion
  • Or Brook, University of Leeds
  • Book: Non-Competition Interests in EU Antitrust Law
  • Online publication: 06 June 2022
  • Chapter DOI: https://doi.org/10.1017/9781108946674.007
Available formats
×