Case prioritisation and prosecutorial discretion by competition authorities

3. The role and limits of discretion in case prioritisation

The previous section considered how different types of priorities interact. The discussion was based on an assumption that competition authorities have some ability to choose and then execute their priorities.

While there will likely always be choices available to competition authorities in how to progress cases, focus their investigative resources and the outcomes they pursue, nonetheless, the ability for authorities to freely exercise case prioritisation is to some extent determined by the degree of discretion they have to select their actions. Brook and Cseres (2021[2]) refer to the ability to set priorities as administrative discretion. As an example, if an authority is under an obligation to pursue an investigation in response to all complaints or petitions it receives, the ability to freely prioritise will be reduced. The ICN (2021[7]) notes that the most common reason competition authorities gave for not having a competition enforcement prioritisation policy was that they did not have discretion to dismiss complaints and so did not need a policy.

This section considers what discretion means for competition authorities and what impact it has on their ability to prioritise.

3.1. The degree of discretion affects the ability to prioritise freely

How competition authorities can, and should, prioritise depends on their legal and institutional context, and in particular the constraints that they must operate under. To illustrate this point, case prioritisation discussions do not usually focus on the area of mergers, as many jurisdictions have little choice but to assess mergers that are filed. This could mark a point of significant differences between prosecutorial and administrative regimes., however and even where a merger has to be reviewed, there will likely remain discretion on which issues to explore and how to do so.1

Discretion concerns whether authorities have the ability to select or deselect cases on subjective policy grounds, rather than objective grounds such as incomplete filings or clear lack of relevance (Petit, 2010[19]). Discretion can also be defined as the availability of options rather than an enforced choice (Gryllos, 2016[20]). There are several aspects of discretion to consider. As noted above, this includes whether or not authorities have a discretion to investigate matters as they choose or to respond to issues brought to them. These are sometimes described as the positive and negative aspects of prioritisation (Wils, 2011[21]). Interestingly, authorities appear to be aligned in having similar degrees of positive prioritisation, but may differ in their negative prioritisation abilities, notably how they must respond to complaints (Wils, 2017[22]).2 Finally, as noted by Brook and Cseres (2021[2]), both de jure and de facto discretion are relevant, as even if legally it may be permissible to prioritise, it must also be possible in practice.

Beyond case selection discretion, timing and resourcing considerations also provide a degree of discretion, as does case strategy. Even if there are mandatory actions for authorities, there is likely to be some ability to decide what to do and how to do it (Kovacic, 2018[18]). This means that while discretion is a determinant of how freely an authority can prioritise across cases, a lack of discretion does not necessarily mean an authority has no ability to prioritise.

Box 2. ECN+ and changes in discretion for authorities

The ECN+ Directive (Directive (EU) 2019/1) entered into force on 3 February 2019 and required Member States to transpose it into national law by 4 February 2021. Article 4(5) empowers National Competition Authorities (NCAs) to set their own enforcement priorities and to reject complaints on priority grounds, with the goal of enabling NCAs to use their resources more effectively.

Pre‑Directive, prioritisation powers across EU NCAs varied with some NCAs lacking the power to reject official complaints on priority grounds. The European Commission’s 2017 Impact Assessment reported that fifteen NCAs did not have full power to set their priorities and decide which cases to dedicate their resources as they could not reject non-priority complaints without first investigating the substance of the complaint. It also found that eight NCAs were obliged to investigate cases even if they were not a priority.

For example, France’s Autorité de la Concurrence, prior to the Directive did not have the power to reject complaints on priority grounds and could only reject a complaint when it determined that the facts invoked were not supported by sufficient evidence. Similarly, Hungary’s Gazdasági Versenyhivata was previously required by law to examine all formal complaints and thus had limited scope for setting priorities before the transposition of the directive in its national law on 1 January 2021. Likewise, prior to 29 April 2021, Spain’s Comisión Nacional de los Mercados y la Competencia (CNMC) had a duty to investigate every complaint to identify whether there was sufficient evidence of a possible infringement and could not reject complaints when they are not a priority.

Post-Directive, once Article 4(5) was transposed into a member state’s national law, an NCA which was required to examine all formal complaints was able to reject cases based on their enforcement priorities. For example, the Autorité de la concurrence gained an express ‘opportunité des poursuites’ power in 2021 in its transposition of Directive EU and has rejected complaints on that basis, for example, Decision 22‑D‑19 (Culture Presse/La Poste, 20 Oct. 2022). According to a 2024 ECN Report, only one Member State’s NCA did not have an explicit power to reject formal complaints on priority grounds.

Sources: ECN (2021[10]); Dr Armin Cuyvers et al. (2022[23]); ECN (2024[24]); Anna Piszcz and Catherine Grynfogel (2022[25]); European Commission (2017[26]); Wouter Wils (2017[27]); OECD (2019[28]).

The level of discretion competition authorities have can vary across jurisdictions. As detailed in the Annex of this paper, the majority of respondents to the OECD Survey indicated that they had at least some discretion to dismiss complaints that were received, with only two respondents indicating that they had little discretion to dismiss complaints. There was an even split between respondents indicating that they had significant discretion and those that indicated only having some, with the difference being attributed to the need to provide reasons. Similarly, in a 2021 survey by the ICN, 61% of responding competition authorities indicated that they did have the discretion to not proceed with investigations based on complaints, tip-offs or referrals (ICN, 2021[7]).3 Box 2 describes how discretion has evolved in the European Union following the ECN Directive.

Discretion is not necessarily the same across all types of activities. Several jurisdictions have criminal sanctions for certain conduct, largely in relation to cartels. With potentially criminal conduct, a general principle might apply that prosecution should be brought where there are clear grounds that an individual criminal offence has been committed. Discretion may therefore be more limited to assessments of likelihood of proving breaches. 4 Even within this framework however, there may be grounds to consider the broader relevance and public interest in a case. In this sense, there are even some similarities between case prioritisation and criminal prosecutorial discretion.

3.2. Discretion empowers authorities but may be subject to limits

As experts in their field, authorities are likely best placed to use their specialised knowledge to understand how to best achieve their objectives. For some, discretion also goes hand-in-hand with independence, reducing the risk of undue interference by allowing authorities to conduct their affairs as they see fit. If authorities are not given options, then it increases the risk that they can be influenced by government.5 Further, discretion may enable authorities to more effectively take into account broader public interest considerations that may be difficult to incorporate into enforcement decisions, but are nonetheless important for maximising the benefit and relevance of their work (OECD, 2023[29]).

While many jurisdictions provide discretion to authorities, some implement a safeguard of transparency through an obligation to explain why.6 This obligation typically mandates explaining the reasons for not taking or continuing a case. Insufficient transparency could provide conditions for competition authorities to breach general principles of law, such as obligations not to discriminate between different entities (Petit, 2010[19]). For example, competition authorities have sometimes been found to have given insufficient reasoning for having rejected complaints and been asked to reconsider (AWB, 2010[30]).

Some jurisdictions limit other aspects of authority discretion, for example by imposing administrative limits on them. This could include setting time limits on cases, or requirements to consult with parties. This provides a mechanism by which authorities lose a small element of discretion to enhance accountability for decisions made after initiation.7 In other jurisdictions, competition authorities can be obliged to engage in activities specifically directed by government. For example, in Australia and New Zealand, the competition authorities can be required to conduct market studies at the behest of government (OECD, 2025[31]).

These different forms of constraint combine to influence the degree of prioritisation exercised by an authority. Based on their research of European prioritisation practices, Brook and Cseres (2021[2]) highlight the interaction between prioritisation and constraints, setting out four models of competition authorities prioritisation. These identify trade-offs, based on external (governments, legislators or judiciary) and internal (self-imposed constraints by the authority) constraints.8

While this paper argues that discretion is an important element to enable effective case prioritisation, and that case prioritisation is important, within the context of public bodies often independent from central government, there may be possible reasons to limit or impose obligations in relation to the discretion of competition authorities. The literature, for example, has noted that unrestrained discretion can lead to risks (Brook and Cseres, 2021[2]) or trade-offs (Petit, 2010[19]). One potential limitation on discretion is that decisions by authorities in many jurisdictions will be subject to general principles of administrative law, including effectiveness, independence and accountability, as well as government and judicial oversight (Brook and Cseres, 2021[2]). There have also been arguments raised for reasons to have some limits on unfettered discretion. For example, potential concerns about corruption, misaligned incentives, unaccountability, lack of transparency (Markowitz, 2017[32]).

Further, and in contrast to arguments seen above in favour of discretion, Petit (2010[19]) notes the risk of populism if too much discretion is given to authorities to dismiss complaints. (Schinkel, Tóth and Tuinstra, 2019[33]) have argued that providing too much discretion could allow perverse incentives for staff within authorities who may make decisions based on their careers rather than the public good, for example selecting higher profile or safer options compared to otherwise. Democratic accountability and competition policy may also be relevant. Limiting discretion may improve transparency and some have argued may improve (perceived) access to fair process and redress for citizens. For example, drawing on the work of administrative law theorist Kenneth Cup Davis, Waller (2025[34]) argues that as well as providing transparency of prioritisation decisions, a decision not to proceed with an investigation should be appealable in order to promote discretionary justice.

The appropriate balance between discretion and constraints will depend on the institutional and legal context in which the competition authority operates. However, significant discretion is an important pre-requisite for effective prioritisation and provides the freedom for expert independent bodies to exercise their mandate. Nonetheless, having some checks and balances in this process, for example on transparency, may be beneficial. There may also be legitimate questions over who sets the priorities and how government priorities are taken into account.

3.3. Where possible, competition authorities should promote transparency in how they exercise discretion

As well as being a limit on discretion, transparency on how discretion is exercised regarding case prioritisation has many benefits. For example, the Recommendation of the OECD Council on Transparency and Procedural Fairness in Competition Law Enforcement recommends that, as part of ensuring that competition law enforcement is transparent and predictable, adherents should promote the transparency of their competition enforcement priorities (OECD, 2021[35]).

In general, the full details of case prioritisation decisions are internal and not available to the public. Providing too much disclosure on the nature of these decisions would likely reveal information which could harm the authority in the pursuit of its objectives. However, in some cases, it will be possible for information to be provided on which cases are being pursued and its relative merits, rather than the prioritisation decision itself. Press releases, for example, may offer some clues as to the reasons a case is launched, rather than a full analysis of its respective merits.

An important exception, as discussed above, is when there are obligations to explain why a complaint is not being pursued, and the level of detail required within such explanations. The obligation may be triggered when certain criteria are met, for example with the requirement only being triggered for qualifying complaints. Such rules can improve future intelligence provided to the authority by allowing stakeholders to better understand why cases are prioritised or not. However, there is a risk that the incentive to complain will be undermined if prospective complainants self-assess that the authority will not prioritise it (Van Rompuy, 2022[36]).9

Even if individual prioritisation decisions are not necessarily public, competition authorities can communicate how they will generally prioritise cases. This allows stakeholders to obtain a greater understanding of the actions of a body, improving agency accountability, but also allowing stakeholders to better adapt to the public priorities. Several authorities issue public guidelines to explain how they will prioritise across cases. These guidelines also serve to provide guidance to the private sector on how the authority will select cases. As noted further below, such guidance will need to retain a degree of flexibility, in order to reduce the risk that does not appear to permit anti-competitive behaviour implicitly deemed a non-priority.

The OECD Survey provides some insights to how authorities publish their case prioritisation policies. Half of the respondents indicated that they published written guidelines on how they make case prioritisation decisions, while six others (20%) indicated that they had a policy but did not publish it. Similarly, in the 2021 ICN survey on case prioritisation, just over 75% of respondents had a case prioritisation policy of which 66% of the authorities stated that they made the policy public (ICN, 2021[7]), also equating to half of respondents. Box 3 describes the approach of several authorities to case prioritisation, including noting how they communicate their approaches to case prioritisation. Efforts to explain how cases are selected can be enhanced if the authority has a dedicated unit for such tasks, such as a team that focusses on policy (Kovacic, 2018[18]). Such a unit can also help produce internal processes to guide how and when authorities will provide information on their case selections.

Box 3. How competition authorities’ approach case prioritisation

Australia’s compliance and enforcement policy and priorities

The Australian Competition and Consumer Commission’s (ACCC) approach to the prioritisation of competition and consumer cases is set out by its Compliance and Enforcement Policy and Priorities document. The ACCC uses a mix of principles and factors to make a qualitative judgment in selecting the matters it investigates and sectors it engages in education and market analysis. For example, the Compliance and Enforcement Policy and Priorities 2026-27 Report states that the ACCC’s first priority is to achieve the best possible outcome for the community and to manage risk proportionately in its case selection. The Report notes that enforcement actions are undertaken with the goal of maximising impact and leveraging any outcomes across an industry sector. Thus, the ACCC exercises discretion to direct resources to matters that provide the greatest overall benefit.

Annual priorities also inform the ACCC’s compliance and enforcement activities for the year. Specifically, the 2026–2027 priorities guide the ACCC to consider competition issues across supermarkets and retail, essential services, aviation, and digital markets. The ACCC used surveys, complaints, intelligence, market inquiries and monitoring activities to identify where competition and trust are under pressure, to determine what sectors of the economy or type of conduct the ACCC would focus on for the year. The Report also lists matters that it is unlikely to pursue including (but not limited to) a one-off isolated event or matters more appropriately resolved directly between the parties.

Denmark’s prioritisation of tasks

The Danish Competition and Consumer Authority (DCCA)’s website sets out how it prioritises matters. Prioritisation is guided by a qualitative assessment. The DCCA explains that it weighs the expected impact on market functioning of actions against the resources required. When assessing potential enforcement actions, it considers the gravity and market impact of the suspected infringement, whether the case may clarify a legal issue, and the resource intensity of pursuing it. In determining what guidance or information to issue, like the ACCC, the DCCA looks at stakeholder demand, whether the rules are perceived as unclear, and the expected impact on the relevant market and society.

The United Kingdom’s prioritisation and principles report

The Competition and Markets Authority’s Prioritisation and Principles Report (2023), explains that its case selection is guided qualitatively by five considerations. These are: the case’s strategic significance, its expected impact, whether the CMA is best placed to act, required resourcing; and the risk associated with CMA action. In general, the CMA’s prioritisation is guided by balancing the strategic significance and impact of the case, against risk, resource implications, and whether the CMA is best placed to act. Prioritisation is therefore reliant on judgment and will vary from case to case, contingent on the CMA’s overall portfolio and available capacity at the time.

Slovakia’s priority policy (2025-2026)

The Antimonopoly Office of the Slovak Republic (AMO) approaches its case prioritisation through a qualitative framework, which rests on four criteria: (1) the importance/strategic importance of the case; (2) the presumption of success of the case; (3) existence of other more effective and deterrent measures; and (4) existing capacities of the AMO. Determining the importance/strategic importance of the case rests on the type of case, with horizontal agreements given primacy, and the factual significance of the case which includes amongst other things, whether the violators of the law are significant entrepreneurs in the relevant market. The presumption of success rests on factors including but not limited to the available evidence. However, the AMO noted that these four principles do not exclude the intervention of the AMO in cases which do not fall under the above-mentioned criteria.

Sources: ACCC (2026[37]), Compliance and Enforcement Policy and Priorities; CMA (2023[38]), CMA Prioritisation and Principles; AMO (2025[39]), AMO Priority Policy 2025-2026.

Notes

← 1.  This means that even within mergers there will be a degree of prioritisation required, including on which cases to devote resources to, the remedies to pursue and the theories of harm focussed on. The overall amount of resources dedicated to mergers can also be decided at an organisation level, perhaps linked to the high-level priorities.

← 2.  Another aspect is whether there are external influences on the choices or actions that authorities can take. This could include obligations to undertake projects if directed by government, as is for example the case in some jurisdictions for market studies (OECD, 2025[31]).

← 3.  Consistent with the OECD Survey however, further analysis of the results suggests a higher proportion of OECD Members are able to dismiss complaints compared to non-Members, with 81% of OECD Member respondents indicating that they had this discretion. Analysis includes the European Union (EU) and OECD Members as of 14 March 2026. For some OECD Member jurisdictions, more than one agency responded to the survey. For those members, only one response was counted and it was selected as yes if at least one of the responding agencies indicated “yes”.

← 4.  For example, in Australia, the decision to prosecute a cartel case criminally is dictated by a Memorandum of Understanding (MOU) between the Australian Competition and Consumer Commission (ACCC) and the Commonwealth Director of Public Prosecutions (CDPP) as well as the CDPP’s own prosecution policy (CDPP and ACCC, 2022[78]). The MOU provides that the ACCC will refer only serious cartel conduct to the CDPP. Conduct is more likely to be considered serious where one or more factors apply, including (but not limited to): that the conduct was covert. Once a matter is referred, the CDPP decides whether to prosecute a case criminally by applying its prosecution policy - assessing first whether there is a reasonable prospect of conviction, and then whether prosecution is in the public interest. This involves considering non‑exhaustive evidentiary factors (such as whether a witness may be unreliable) and a broad set of public‑interest factors (including the seriousness or technicality of the offence). The prosecution policy notes that, in practice, prosecution generally proceed criminally where sufficient evidence exists to justify it.

← 5.  As explored further below however, the opposite could also be true and has been argued. Namely that if there is lots of discretion, it can provide a way to capture an authority and dictate the work that they do, as they face limited constraints.

← 6.  For example, this is the case in the EU (See Commission Regulation (EC) No 773/2004 of 7 April 2004 Article 7 (EU, 2004[83])) and Japan, where in the latter the Article 45 of the AMA requires the authority to notify the outcome of its handling of any report that satisfies the prescribed requirements (Japan, 1947[82]).

← 7.  For Italy the details of the alleged violation must be notified to interested parties within 90 days as provided Law 24 November 1981, no. 689 (Italy, 1981[80]) Article 14. For Australia there is a six-year limitation period from the date of the contravention to undertake civil claims seeking penalties or damages. See Competition and Consumer Act 2010 (Cth) s 77 (Australia, 2010[81]).

← 8.  They illustrate this by presenting four scenarios: 1) high degree of prioritisation, with external or internal constraints; 2) a high degree of prioritisation, limited external and internal constraints; 3) a medium degree of prioritisation, limited internal constraints; and 4) a low degree of prioritisation, high degree of transparency.

← 9.  While preventing frivolous complaints is beneficial, as important sources of information, competition authorities are likely to be mindful of encouraging, rather than dissuading, potential complainants.