Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement

This article discusses discretion and prioritisation in public antitrust enforcement, in particular in the enforcement of European Union (EU) antitrust law. First, this article defines the notion of discretion and discusses the rationale of discretion. Second, it examines the enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) by the European Commission, showing that the Commission has a broad discretion concerning the question on 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 neutralized by the General Court's unlimited jurisdiction. Third, a brief comparison is made with and between the competition authorities of the EU 'Wernher States, highlighting divergence as to discretion to set priorities. The last section of this article 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.