Case Prioritisation and Prosecutorial Discretion - OECD Presentation

Case Prioritisation and Prosecutorial Discretion Overview of Secretariat Paper

Richard May OECD Competition Division

OECD note and all related documents available at

oe.cd/cppd

Case prioritisation

What to pursue and how?

On-going process

Linkage to highlevel priorities

Requires discretion, balanced with transparency and accountability

Relevant factors for prioritisation

Value or impact of the case

Cost factors

Many other relevant factors

Size or focus on sector Likelihood of success Harm, remediation potential and alternatives Deterrence or legal clarity

Scale and scope Complexity Risks

Shine a light Political or strategic factors Diversifying portfolios Others

Implementing case prioritisation Processes to ensure robust decisions Range of approaches – not one-size fits all Dedicated teams may be useful

Consider internal and/or external guidelines

Other considerations for case prioritisation

Necessary but not sufficient for success

Case pipelines important

Value of ex-post and impact assessment

OECD delegate survey

Launched February 2026

30 responses

Discretion

7 substantial questions on:

Transparency Influences of decisions Processes

Most competition authorities have some discretion to dismiss complaints Little

To what extent do you have discretion to choose whether to investigate a complaint or allegation of a breach of competition law that is brought to your attention?

Some

Significant 7%

46.5%

46.5%

Half of the authorities have external guidelines Yes

Do you publish written guidelines for how you take decisions on case prioritisation?

No, but internal guidelines

No explicit guidelines

30%

50%

20%

Most authorities say high-level priorities influence case prioritisation Somewhat unlikely Somewhat likely

How likely is a typical individual case prioritisation decision to be influenced by high-level priorities set for the organisation such as focussing on an industry or type of conduct?

Neither likely/unlikely Very likely 3%

14%

23%

60%

Mixed decision-making processes Regular intervals Informal decisions

Does your organisation have formal decision points for investigations on whether to continue to prioritise them after being initiated?

10%

Specific decision points Other

13%

30%

47%

Mostly by areas of responsibility

Slightly more often by areas of responsi

Mostly by most senior leadership

Other

Mix of bottom-up and top-down decision-making Even balance between the two Slightly more often by most senior leade For a typical case prioritisation decision, are decisions mostly made by areas of responsibility (i.e. driven by the leader of the cartels team) or by the most senior leadership of the organisation (i.e. taken by executive leadership or the board?

7%

27%

33%

10%

6%

17%

Access the OECD note and all documents from this roundtable at oe.cd/cppd

Contact: Richard.May@oecd.org