KATI CSERES
UNIVERSITY OF AMSTERDAM
K.J.CSERES@UVA.NL
OR BROOK
UNIVERSITY OF OXFORD
OR.BROOK@LAW.OX.AC.UK
PRIORITY SETTING
The legal competence and de facto ability of competition authorities to choose which cases to pursue and which to disregard
Scarce public resources
PREVAILING APPROACH TO PRIORITY-SETTING
• REACTIVE
• INSULATED
• CONSUMER-WELFARE
CENTRIC
METHODOLOGY: THE PRIORITY SETTING PROJECT
✓ Theoretical framework
✓ Questionnaires + Interviews
✓ Study of national administrative and constitutional law of 27 NCAs +UK and EU
✓ + A separate study on competition authorities in developing countries
BENCHMARKS
TYPOLOGY OF PRIORITY SETTING
TYPOLOGY OF PRIORITY SETTING:
AGENDA SETTING
Adopted by CA following consultation, reported to legislator (UK)
Adopted by CA, reported to executive (BE, ES)
Adopted by CA, following public consultation (AT, CY, DG COMP, NL)
Adopted by CA (BG, DK, FR, HR, PT, SE, SK)
No Agenda (CZ, DE, EE, FI, GR, HU, IE, IT, LT, LU, LV, MT, PL, RO, SI)
TYPOLOGY OF PRIORITY SETTING: COMPETENCE TO PRIORITISE
TYPOLOGY OF PRIORITY SETTING: ABILITY TO PRIORITISE
o Legal framework
o Resources
o Organization and structure
o Staff skills and competences
TYPOLOGY OF PRIORITY SETTING:
PROCEDURE
o Type of prioritisation decisions (reasoning, publication, and time limits)
o Judicial review of prioritisation decisions
o Participation of third parties
o Institutional setting of the priority decision-making
TYPOLOGY OF PRIORITY SETTING: INSTRUMENT AND OUTCOME DISCRETION
o Soft enforcement (commitments, informal opinions)
o Leniency and settlements
o Multi-function competition authorities (e.g., sector regulation or consumer protection)
TYPOLOGY OF PRIORITY SETTING: SUBSTANTIVE CRITERIA
“We may prioritise work because the direct effects would specifically benefit people who need help the most. Vulnerability can be context-specific and can take a range of forms. When targeting our interventions, we will therefore look at specific contexts in which people may need particular help to protect them from harm and get a fair deal”
CMA, Prioritisation Principles (Oct 2023)
TYPOLOGY OF PRIORITY SETTING:
IMPACT ASSESSMENT
No impact assessment
Informal review
Limited assessment as part of the annual report
Full impact assessment
TYPOLOGY OF PRIORITY SETTING:
THE PRIORITY SETTING CYCLE
Impact assessment
Post-decision stage
Agenda setting
Pre-decision stage
Substantive criteria
Decision stage
TYPOLOGY OF PRIORITY SETTING:
THE FOUR MODELS
‘CHECKLIST’
‘CHECKLIST’
ADDITIONAL READING
POLICY REPORT:
PRIORITY SETTING IN EU AND NATIONAL COMPETITION LAW
ENFORCEMENT (2021)
PRIORITY SETTING AS THE BLIND
SPOT OF ADMINISTRATIVE LAW
ENFORCEMENT: A THEORETICAL, CONCEPTUAL, AND EMPIRICAL STUDY OF COMPETITION AUTHORITIES IN EUROPE (2024)
BEYOND CONSUMER WELFARE: RESPONSIVE PRIORITYSETTING IN THE PUBLIC INTEREST IN COMPETITION LAW ENFORCEMENT (2026)