Case prioritisation and prosecutorial discretion by competition authorities

4. Which factors affect how competition authorities prioritise?

This section will consider the factors that competition authorities may take into account when determining which cases to prioritise. In theory at least, a wide range of factors need to be considered and balanced for each case prioritisation decision. In essence the exercise is akin to a holistic cost benefit analysis. For example, Kovacic (2018[18]) suggests that authorities consider nine questions before deciding to proceed with a potential project, such as a case.1 Beyond a cost benefit exercise, case prioritisation could also be considered in the context of avoiding Type I and Type II errors, while controlling costs (OECD, 2008[40]). As noted further below however, cases that do not result in an infringement decision are not necessarily a waste of resources, especially if they provide clarity on the law and provide an opportunity for further compliance from firms (Petit, 2010[19]). Box 3 above provides examples of the approaches taken by some authorities to prioritise cases.

The assessment typically starts with an issue and a potential instrument in mind. For simplicity, the discussion below assumes that these steps are completed, and that there has already been consideration of whether there is a better alternative to using this particular instrument for the issue in question. How prioritisation decisions vary according to the instrument selected is discussed at the end of the section.

The factors apply to every decision. This means that individual factors in the paper are considered on the basis of all else being equal, namely a potential case being identical in relation to all other factors but this one. In reality, this will be rare, with several factors often working in different directions. Considering factors in this way assumes a queue of potential cases upon which authorities can access information, and therefore carefully calibrate across relevant variables. In practice, authorities may be presented with relatively few promising leads, over which there is significant uncertainty. As such, while there is value in considering all of the factors that might be relevant for an authority’s decision, it is important to note that in practice authorities will need to be pragmatic and practical in making case prioritisation decisions. It is therefore likely that most decisions will focus on the most pertinent and relevant factors, rather than necessarily a systematic consideration of every factor.

Further, as noted in the previous section, prioritisation decisions are made by humans, either individually or collectively, who may face incentives that differ slightly from those of the authority as a whole, as well as being liable to cognitive biases and limitations. Individuals may also face incentives that do not align perfectly with the organisation they work for. As such, competition authorities are unlikely to be perfect decision making entities. Section ‎5 considers many of these issues in more detail, including how authorities deal with uncertainty, a lack of information, as well as how they balance the different factors in practice.

The OECD survey asked respondents to consider the relative influence of substantial factors versus procedural ones on their case prioritisation decisions. Substantial factors were defined as those such as the theories of harm, its potential impact, potential legal precedents etc., whereas procedural factors concerned issues such as the likely resources required, the case complexity, staff availability etc. A slight majority of the respondents indicated that substantial factors were more likely to influence their decision making than procedural factors, although 13 of the 30 respondents noted that both had an equal influence. None of the respondents suggested that procedural factors were more relevant than substantial factors in their case prioritisation decision making.

The factors described below could be characterised in a number of ways. As in the OECD survey, they could be thought of in terms of substantial factors versus procedural factors. Another way to cut them could be between external and internal factors. Building on the analogy above to cost benefit analysis, the paper categorises based on what could broadly be considered as the impacts of a potential case, compared to the potential cost. Such a split is not intended to be determinative, but serves as a useful way to describe the relevant considerations. As many factors can affect case prioritisation and not all fall neatly into either benefits or costs, a category is added to capture other factors. As such, this section categorises factors relevant for case prioritisation as follows:

• The expected value or impact of the case, including factors such as the economic importance of the sector, the likelihood of success, expected harm and the ability to reduce it, the ability to deter others and providing legal precedent or certainty.

• The expected cost implications of the case, including its complexity, scope and expected risks.

• A potentially wide range of other factors that could be relevant to the decision.

A crucial point to highlight regarding the assessment of cases against these factors is that one of most significant issues to consider when prioritising cases is the opportunity cost of any candidate option. Plainly, what actions might be impossible to take if this one is pursued, or what will be possible if it is not. To consider this, the authority must have some sense of the next best alternatives and their respective impact and cost. This element reinforces that case prioritisation should be undertaken holistically rather than purely looking at each prospective case in isolation. While competition authorities should always be mindful of the opportunity cost of their actions, in some circumstances this may be less relevant, for example if the authority is not near its operational capacity.2

4.1. Higher impact cases are likely to be prioritised

All else equal, cases expected to have a larger impact will be given priority. There are several aspects to the expected impact of cases. One aspect is the financial or economic impact that a case has, either on consumers or the broader economy. Another is the extent to which the case might be expected to have a broader societal impact. Within both areas there are multiple factors that can determine the expected impact.

A key starting point for this assessment is the expected chance of success, either through prosecution or from not having an administrative decision overturned through appeal. This can depend on a range of factors, including an assessment of the expected future reaction of courts. A related consideration is the extent to which success in the case will directly impact outcomes in the relevant markets, for example by providing effective remedy to the suspected harms.

Beyond the economic and societal impact, cases may also have an impact on future competition law compliance, for example by deterring others from breaching the law. Cases could also have value if they offer the prospect of providing legal clarity or precedent. Such prospective cases may need to be selected carefully, but at times testing the boundaries of the law could be valuable to reduce business uncertainty, as well as further promote compliance.

4.1.1. Authorities are more likely to prioritise cases in sectors of importance

The OECD (2014[41]) guide for competition authorities to assess the impact of their activities describes the main determinants of the direct effects of authority actions on consumers. This is the financial savings by consumers that can be attributed to the intervention, determined by the likely price effect, the revenues involved, as well as the expected duration of the conduct absent the action.

As such, cases that relate to larger sectors in terms of revenue will generally have a larger impact and therefore are more likely to be prioritised. While many competition cases will relate to firms rather than the sectors in which they operate, for most competition cases it is reasonable to expect that a competition issue in a sector will influence outcomes across it.

Another factor that might be relevant is if the sector involved is critical in relation to other sectors of the economy, such that improvement in competition might be thought to have significant spillover effects. The prices of key inputs for other economic activities, such as energy or logistics for example, will have effects across a wide range of economic activity.

Beyond the economic reasoning above, cases could also be prioritised because they fall within a particular sector. For example, as discussed above in Section ‎2, a sector could have been identified as a priority area by the authority, making it more likely that potential cases within it will be taken. Relatedly, it could be a priority sector for the government and therefore worthy of consideration as part of public accountability. Of course, the assessment of a sector as a high-level priority is likely to have considered many of the above factors already.

Further, public interest or social factors could lead to a case being taken or not. For example, Brook (2020[42]) empirically examines the cases that competition authorities in the EU have taken between 2004 and 2017, and argues that it shows how competition authorities have avoided taking cases that may be anti-competitive but with wider public policy angles.

Recently however, there has been increased discussion on the role of broader policy considerations in competition authorities’ decision making (OECD, 2023[29]). As explored in detail through previous OECD Competition Committee discussions, there are several potential public interest factors that competition authorities could consider relevant in deciding whether to pursue, and continue, a potential case. One such factor could relate to environmental sustainability, which may work alongside or in opposing directions to competition (OECD, 2020[43]). Other considerations could relate to democracy (OECD, 2024[44]), inflation (OECD, 2022[45]), poverty reduction (OECD, 2023[46]) or national security concerns (OECD, Forthcoming[47]). As described in recent work from the OECD, prioritisation could also include considerations of gender issues (Kovacic, 2021[4]; OECD, 2023[48]). The relevance of these factors to a particular case, and the extent to which it will influence a competition authority’s decision making will vary by jurisdiction and the broader policy environment. There will likely remain significant debate on the role that these considerations should have within competition policy. Nonetheless, in many jurisdictions, competition enforcement mechanisms may have relatively little flexibility in which to take into account broader policy considerations, and therefore prioritisation may provide one way to assist authorities in aligning and contributing to wider policy goals. Box 4 describes some examples of how these factors have influenced case selections.

Box 4. Examples of other factors affecting case prioritisation

Social factors, pertaining to the public interest are used, occasionally, to explain why Competition Authorities have prioritised particular cases. Many of these factors may also influence the high-level priorities of the authority.

Environment

In part to aid the United Kingdom’s (UK) goal of Net Zero 2050, the UK’s Competition and Markets Authority (CMA) made supporting the transition to a low‑carbon economy a strategic priority in 2020/2021, stating it would “act in a way which supports the transition to a low carbon economy.” Operationalising that priority, in 2021 the CMA launched a market study into electric‑vehicle (EV) charging. In its final report, the CMA stated that delivering Net Zero (and the 2030 phase‑out of new petrol and diesel cars) required a comprehensive and competitive EV charging network, which the study set out to assess and promote through recommendations.

Cost of Living and inflation

The Australian Competition and Consumer Commission’s (ACCC) compliance and enforcement priorities since 2023 have focussed, among other things, on the “cost of living pressures”. Thus, cost of living, among other things, has been cited in the ACCC’s reasoning for taking past enforcement actions and market studies. For example, the ACCC tied its decision to implement proceedings against Woolworths and Coles in part to cost‑of‑living harms: “[m]any consumers rely on discounts to help their grocery budgets stretch further, particularly during this time of cost-of-living pressures.” The Canadian Bureau of Competition similarly cited inflationary pressures as part of its reasoning for undertaking a market study into competition in Canada’s Grocery sector. It stated that “grocery prices in Canada are currently increasing at their fastest rate” and that “grocery prices are increasing at an above-average rate.”

Vulnerable consumers

The Dutch Authority for Consumers and Markets’ (ACM) policy on prioritisation identifies that it “can prioritise an enforcement investigation because of the relatively large impact that [the impugned conduct] can have on … people and companies in vulnerable or dependent positions.” The ACM has at times, invoked this rationale to explain why it has taken particular cases. For example, it took action against unlawful rental‑agency fees, expressly citing the abuse of tenants’ vulnerable position as one of the justifying factors. Similarly, an investigation against door-to-door sellers who sold alert systems to the elderly was justified under the company’s targeting of “an often-vulnerable population”.

Poverty reduction

In Mexico, poverty‑reduction considerations have also shaped sectoral prioritisation. In its 2022-2025 Strategic Plan, the Federal Economic Competition Commission (COFECE) included the “impact on lower‑income population” among the criteria used to determine priority sectors for both enforcement and advocacy cases. Applying this criterion, COFECE identified several strategic sectors for 2022‑2025, including the food and beverages sector, and opened several investigations into the markets for industrial gases, corn and corn flour which would benefit the lower-income population.

Gender equality and democracy

Broadly, competition authorities do not appear to have set explicit gender related case priorities. However, Kovacic has noted that gender related considerations may have implicitly played a role in bringing cases. For example, the EU’s 2020‑2025 Gender Equality Strategy emphasises that the ‘Commission will … systematically include[e] a gender perspective in all stages of policy design in all EU policy areas, internal and external”. It is plausible that gender has shaped how authorities prioritise cases, especially in the EU, albeit without being expressly invoked in case rationales. Like gender, democratic related priorities may implicitly play a role in an authority’s case prioritisation decision. The then Executive Vice President of the EU Commission, Margrethe Vestager gave a speech in 2024 where she stated that “competition policy is a democratic tool” citing that a fundamental objective of antitrust is “to preserve a diverse marketplace” and that competition enforcers, “are guardians of fundamental values: liberty, choice and pluralism”. Competition authorities have invoked media pluralism (a recognised component of democracy) as justification for enforcement action. For example, the UK’s CMA conducted an inquiry into an anticipated 21st Century Fox/Sky merger on the grounds of media plurality. It is therefore possible that democratic related principles and values have shaped NCAs case prioritisation, however, like gender, this has rarely been expressly invoked in case rationale.

Source: CMA (2020[49]; 2024[50]; 2021[51]; 2017[52]); ACCC (2024[53]); CBC (2022[54]); ACM (2023[54]; 2023[55]); William E. Kovacic (2021[4]); Kaitlin J Cseres (2021[2]); Margrethe Vestager (2024[57]); JFTC (2021[58]); COFECE (2022[16]).

4.1.2. The impact of a case also depends on the issue, remedial options and alternatives

In addition to the importance of the sector, another key consideration is the expected magnitude of the potential harms to competition that can be reduced due to the action. This is linked to the likelihood that the suspected issue is actually harming competition and, if it is, the magnitude of such harm. While competition provides benefits to many parameters other than just price, a simple metric to consider this conceptually would be the likely increase in prices caused by the conduct that the case would seek to address (OECD, 2018[59]).

A related consideration is the likely duration of the harm that would have occurred absent action. Even if there is significant harm, if there are reasons to believe it would be short lived irrespective of intervention, perhaps due to expected entry or an upcoming change in legislation, this might otherwise make a case less likely to be prioritised. Ex-post assessments of previous actions can be a useful indication of the potential impact of different types of cases (OECD, 2023[60]).

This highlights a more general issue regarding a case’s impact, which is the appropriate counterfactual. In this context, this is what would have arisen absent action by the authority. This is not necessarily the current state of affairs. For example, if action by others were likely to occur and could rectify the issue and reduce harm, the expected impact of a potential case is lower.3 For example, sector regulators, other competition authorities in the case of global issues, or even private enforcement by affected parties, could all lead to similar outcomes than intervention by the authority.4 All else equal, cases without a likely alternative rectification are likely to be prioritised. To illustrate this point, several competition agencies have noted that whether a complaint could be pursued through other avenues is a relevant consideration in deciding whether to pursue a complaint (ICN, 2021[7]; Konkurrensverket, 2022[61]; CMA, 2023[38]).

A similar, but slightly different, issue is whether a prospective case will resolve the alleged competition issue. In other words, will the action prevent the harm from occurring, through remedies for example or recommendations that the government or a regulator act. While punitive measures can still provide deterrent effects as explored below, if the underlying harm cannot be rectified then the direct impact of a potential case is lower.

4.1.3. Aside from direct impact, deterrence effects matter

As noted in (OECD, 2014[41]), and further discussed in (OECD, 2025[62]), consumer benefits are not the only benefits from competition authority interventions. Another important aspect is the effect that enforcement actions can have on deterring others from engaging in illegal conduct.

There is a significant body of evidence relating to the deterrence effect of competition enforcement (JRC, 2022[63]). Much of this literature is based on surveys of competition lawyers and firms to ask them about their experiences of actions and conduct being deterred by competition authority actions (Gudde, 2005[64]; Deloitte, 2007[65]; London Economics, 2011[66]; Spinter Research, 2024[67]).

In weighing up the potential deterrence effect of a prospective case, authorities will likely give particular attention to the size of any expected fines, the applicability of the conduct to elsewhere in the economy, as well as other factors such as previous cases in the sector or recidivism by those particular parties. This could also include consideration of eventual damages that could be accrued.

Cases that are in sectors of high-profile, or otherwise likely to be widely publicised, may also be good candidates to have a larger deterrence effect. On the other hand, considering deterrence effects ensures authorities also assess the expected implications of not taking cases. For example, while an individual case may not offer the highest direct impact, if not taking action increases the chances of similar issues arising in multiple markets across the economy, then it may be more likely to be prioritised.5

The source of intelligence of a case may also be a relevant consideration for authorities. In particular, some authorities may choose to prioritise enforcement cases that are ex-officio rather than reactive. Conducting ex-officio cases provides a signal that the authority is proactively scanning for potential breaches of the law. That a prospective case would be launched ex-officio is therefore something that could enter a prioritisation assessment, even if other factors are not favourable. As explored above, a similar argument can also be made to take certain complaints more seriously than others, as this can improve incentives to provide further information to the authority and better intelligence in the future.6

A related, but broader, issue relates to legal certainty and precedent. There is value in testing legal boundaries, for example to provide greater certainty or an expanded scope. For example, a case could be prioritised even if the prospects of a large impact or deterrent effect are not high, on the basis that a ruling on the case may provide legal clarity going forward, which would be of value to the authority and businesses. Such considerations may be more likely in jurisdictions with a prosecutorial system as the court would be asked to make a ruling, but remain valid for administrative regimes where the appeals process can also provide useful precedent.7

4.2. The simpler and lower cost a case, the better

As well as the expected value or impact of a case, an equally important factor is its expected cost implications. To generalise and somewhat state the obvious, the lower the cost implications, the better. Cost is not simply a matter of financial expenses however, with other factors such as uncertainty and risks also relevant. In practice, it will rarely be possible to consider impacts and costs of prospective cases independently as they can be highly correlated. For example, impactful precedent defining cases are sometimes more complicated, costly and harder to predict. Similarly, while risk is something to avoid all else equal, it can often be associated with significant rewards.

4.2.1. Complexity, scope and duration can hinder a case’s chances

The larger a case and the longer it takes to bring to a conclusion, at least in terms of staff resourcing, the higher its costs will be. There are several factors that may affect the scale and duration of cases, such as the scope of the investigation, the familiarity of case teams with the sector or the degree of expected co-operation from stakeholders, amongst others. More specifically, understanding how firms affected by a case will react to the potential matter can provide a good idea of likely costs, for example, the degree of co-operation with information requests or their litigiousness. For prosecutorial regimes, litigation costs are likely to be a significant factor in considering whether to exercise prosecutorial discretion.

An important factor in the costs of a prospective case is its complexity. There are several aspects to case complexity that may be relevant for prioritisation purposes. Firstly, the more complex it is to prove to the requisite standard that an alleged conduct has breached the law, the more staff time it is likely to take.8 Such complexity could be driven by the sector or technology involved, as well as by the nature of the conduct in question. Such matters may also require specialist skills that are more expensive to recruit and retain, further increasing cost. A second aspect is the increased uncertainty of highly complex cases. Uncertainty links to risks which are discussed further below, but also has cost implications of its own. Planning is an essential part of a well-run organisation, but significant uncertainty reduces the ability of an authority to accurately predict how its workload will evolve, affecting overall planning efficiency. A particularly complex case could therefore raise costs through planning uncertainty.

Other factors might also affect the costs of taking a case. For example, the risks of appeal and its expected costs may weigh on an authority’s mind, as could the likely cost of conducting required analyses. Having processes in place to understand the costs of previous actions could help competition authorities to understand the implications of choices. Some factors may reduce potential expenses, such as if co-operation provides synergies that allow an authority to deliver a case more efficiently. This is particularly likely to be the case where there are confidentiality waivers in place, a strong working relationship between the authorities and sufficient similarity in circumstances to provide synergies. Co-operation is not without its own costs of course, and, as discussed further below, is not undertaken for purely financial reasons.

Finally, while competition authorities will likely focus on their expected costs, they may also be mindful of the broader societal costs of an action, for example the costs that the prospective action will impose on others. Where there is a reasonable prospect of a breach of competition law, or more generally a significant competition issue, the costs imposed on firms at the centre of those issues may not be a determining factor for prioritisation. However, all else equal, the costs that a potential intervention imposes on others may be relevant, for example if the costs will be disproportionately high on third parties or if the financial impact of the proceeding could be detrimental to the financial health of a business.

4.2.2. All else equal, riskier cases are less attractive than safer ones

While competition authorities cannot, and likely should not, seek to avoid all risk when taking cases, in itself a case that is riskier but offers nothing to compensate is less attractive than a similar, lower risk case. All case prioritisation decisions involve uncertainty, and inherent to this is that authorities will need to consider the risks of candidate options. Risk management techniques provide a useful framework for this assessment, through the identification of the likelihood and magnitude of each identified risk. There are several potentially relevant risks for competition actions which will vary by individual case and type of action.

Few case outcomes can be considered certain at the outset. An adverse outcome is therefore itself a risk. In many ways this risk is already part of the assessment of the expected impact, but an additional consideration is required regarding further costs that might arise from the case not progressing as expected. For example, in some circumstances an unfavourable outcome could lead to reputational damage. More broadly, cases may give rise to circumstances that affect an authority’s relationship with external stakeholders. This could affect future cases. For example, it could give rise to relational frictions if not managed carefully, making the gathering of information more difficult amongst a certain set of stakeholders if the authorities reputation has been damaged.

As well as a risk from taking on a prospective case, risks can also arise from not taking action on an issue or rejecting a complaint. For example, a failure to take a case could expose an authority to negative reputational damage if harm were to accrue and an expectation emerges that it could have been prevented. These considerations are linked to the high-profile nature of some markets as discussed above.

In considering the likelihood of specific risks, risk mitigation strategies can be employed by authorities to mitigate them to some extent. The risk appetite of an authority may vary over time, and be affected by its current political context, maturity and past results. It could also reflect the culture of the organisation. Nonetheless, all else equal, cases that raise clear and acute risks, will generally be less attractive than those that do not. Similarly, the higher the risks from not taking a case, the more likely it will be to proceed.

4.3. Many other factors can influence case prioritisation

As noted in the introduction, in its purest form, case prioritisation must take into account a potentially unlimited number of factors as it holistically assesses the best mix of cases. As such, it is impossible to list all conceivable factors that might affect a case prioritisation decision. This section considers some other considerations of potential relevance.

In some circumstances, the ability to provide information and understand an issue can be a further justification to launch a case. For example, in the face of public concern and significant uncertainty regarding the underlying cause of an issue, particularly if high-profile, there might be good reason to prioritise an investigation to ‘shine a light’ on it. This could also relate to the broader political context and a desire to provide answers or shape public discourse in an evidence-based manner. As noted above, interaction with central government can have an influence on the high-level priorities of an authority, and this could include responding to public priorities in an area.

Another factor that may be relevant in deciding whether to embark on an action is the extent to which its goals are measurable (Kovacic, 2018[18]). Projects where outcomes are difficult to measure may, all else equal, be less attractive as they may make it difficult for authorities to evaluate whether or not they have achieved their objectives. This could prevent them from building on the work going forward, as well as being unable to learn lessons from the experience to improve future efforts.

As noted above, in some circumstances costs can be reduced via co-operation with other regulators or competition authorities, although this is not necessarily always the case and can have its own costs. Nonetheless, international co-operation provides multiple benefits, and the opportunity to co-operate could itself be a factor that authorities take into account when prioritising a case, for example as it provides the opportunity to improve a working relationship or learn from others more broadly. In some circumstances this will need to be balanced against considering the additional value of potentially duplicating work. When considering other organisations, this could also include whether an authority defers to another and lets them take the lead on a particular matter, for example if there is more than one body with overlapping jurisdiction.9

Another potential factor which may affect impact and costs is the history of interaction with expected key stakeholders that would be involved in a case. Repeated offending for example suggests penalising in order to send a clear message and deter recidivism, whereas a past history of willing compliance might push towards a lighter touch approach. Having multiple matters open with the same entity may also be a relevant factor, particularly if there is a risk other actions might negatively affect ongoing ones. More generally, as noted in the context of broader criminal case prioritisation, practical considerations may also need to be taken into account, for example relating to expected assistance from potential partners, availability of witnesses if relevant, or any other factors that may make taking a case easier or more challenging (Rastan, 2024[68]).

Finally, a competition authority’s portfolio of ongoing cases may also be relevant, with case prioritisation decisions affected by the other activities of an authority. For example, authorities may want to spread their efforts across the economy and therefore seek to give preference to potential cases that diversify their portfolio. Similarly to the precedent point discussed above, there might be a desire to bring a case if it relates to conduct not challenged recently across the portfolio, as doing so increases visibility of its illegal nature to boost deterrence against similar breaches elsewhere. At the same time, staff resources also need to be considered, including availability, experience and skills. For example, recent history in a sector could be a factor which reduces complexity and costs due to existing staff knowledge. On the other hand, if a case requires complex econometrics and all relevantly skilled staff are busy on another matter, the prospects may diminish.

4.4. Different case prioritisation considerations may be relevant across tools

The discussion above has not focussed on a particular instrument or tool, instead discussing factors that in general apply across them. In practice however, different considerations are likely to apply when considering different types of prospective cases. As noted above, case prioritisation should ultimately consider all potential alternative actions, including all tools. In practice, an authority might be set up to conduct a certain number of cases of a particular type due to its team structure or objectives. This links to the discussion above about high-level priorities or strategy influencing case prioritisation. In addition, for some potential issues there could be multiple prospective tools that might be appropriate. The section below therefore discusses the issues that may be particularly pertinent when assessing a prospective case under the framework of different competition tools.

Regarding competition enforcement, particular attention may be given to the likelihood of finding an infringement, as well as the likely deterrent effect of a positive finding. For some allegations of conduct, in particular relating to hardcore cartels, there is unlikely to be much of a decision making process for prioritisation, particularly in the context of a leniency application.10 Most authorities will take these cases as a matter of course (OECD, 2019[69]). More generally however, weight might be given to whether enforcement could help determine key legal questions.11 This could also relate to a desire to be a pioneer and uncover new issues (Kreifels, 2019[70]). Competition enforcement may also allow greater potential to uncover information in stages, allowing authorities to investigate potential breaches and then decide whether to continue pursuing the case when they have more information. Another relevant factor could be whether competition enforcement is likely to effectively remedy harm or just punish the conduct.

Advocacy tools are likely to require a slightly different set of criteria, as while they respond to competition concerns, they do not require suspicions of a breach of competition law. Advocacy tools, such as market studies, are flexible tools which can promote competition. Market studies help diagnose competition issues and offer recommendations to resolve them, albeit not necessarily within the authority’s power (OECD, 2025[31]). They can therefore cover a broad set of competition issues and be forward looking. Market study selection may be particularly influenced by the high-level priorities of an organisation or government priorities, as they allow information gathering into a sector. As such, for market studies or other advocacy efforts, there is likely to be a focus on the importance of the sector and expected magnitude of suspected competition issues, as well as an analysis of how likely such an action will be to resolve them.12 Finally, market study selection might also place weight on the importance of providing information on underlying issues, especially if there is public scrutiny on outcomes in a market but uncertainty as to their cause.

Case prioritisation is an area that, in general, may apply less to merger control. Generally, authorities have limited discretion to take merger cases, aside from informal discretion regarding the resources that are devoted to cases and the theories of harm to pursue. Merger control may be particularly subject to staffing structures which determine the number of staff working on them. The legislative context of merger control will also be relevant, determining if there is any discretion to review and the timeframes required. However, in prosecutorial or voluntary regimes decisions will need to be made regarding whether to take a matter to court or call it in, and elements of this discretion is similar to other areas.13 In these contexts, the public nature of merger cases and timing implications are likely to be relevant. As most mergers are public, a decision not to prosecute (or call-in) can send a larger and more public signal than, for example, a decision not to launch an investigation or prosecute an alleged infringement that an authority becomes aware of.14 Regarding timing, at least in the context of ex-ante merger control, a failure to act against a merger generally means an inability to do so again in the future, suggesting a greater imperative to do so as a priority.15 Further, even in administrative regimes, there may be elements of discretion in certain circumstances, for example de minimis exceptions in certain jurisdictions (CMA, 2024[71])Further, even in administrative regimes, there may be elements of discretion in certain circumstances, for example de minimis exceptions in certain jurisdictions (CMA, 2024[71])

Finally, regarding other types of authority projects or actions, such as ex-post assessments or research, the criteria will be significantly different (OECD, 2016[72]). In particular, as these actions usually derive benefits over the medium to longer term, rather than necessarily immediately, the main consideration will be the trade-off between the opportunity cost of the action, compared to the expected longer-term benefits of improved functionality, for example due to greater knowledge or learning lessons. Top-down priorities may be an important factor in allocating and ring-fencing budget for these activities, perhaps acknowledging that they may struggle to get priority in the short-term if competing with all other potential actions.

Notes

← 1.  The nine questions are: What are the anticipated gains? What are the risks? Who will do the project? What will it cost? Does the project employ the right policy instrument? Does the project build on what the agency already knows? How does the project fit within the existing portfolio of projects? How long will the project take to complete? How will the agency know the project worked as planned?

← 2.  In these circumstances, taking an additional case does not necessarily require foregoing others.

← 3.  As discussed below, this highlights the importance of co-operation with others.

← 4.  A separate issue in this regard could be whether to intervene in ongoing private enforcement, perhaps as a less resource intensive way to influence outcomes of cases.

← 5.  This links to the discussion explored later in the paper around the risk of short-term prioritisation creating de facto safe-harbours based on perceived thresholds for intervention.

← 6.  For example, if a stakeholder provides information on a potential breach of competition law, dismissing it could impact whether that stakeholder provides information to the competition authority again in the future. For some stakeholders, where potential collaboration has been identified as worthwhile, this could provide an additional reason to prioritise investigating information provided by them.

← 7.  Cases may not need to reach an adverse finding for useless lessons to be drawn. For example, (Heim, 2025[79]) explores the lessons that can be taken from the European Commission’s abuse of dominance cases that were dropped.

← 8.  For example, in the context of mergers, (Burnier Da Silveira and Maiolino, 2025[86]) highlight that international mergers filed in Brazil take longer when they are more complex, for example in relation to the number of affected markets and whether number of jurisdictions notified.

← 9.  For example, this could be a relevant dynamic in the United States if the Federal competition authorities collaborate with state enforcers, for example in the OH v NCAA cases (Ohio et al. v. National Collegiate Athletic Association (NCAA), 2023[84]). It could also be relevant in the UK where the competition concurrency regime provides overlapping jurisdiction for competition issues between the CMA and sector regulators. In addition, in the EU, the European Commission and the competition authorities in member states may both have authority to review some matters.

← 10.  In this regard, it is worth noting that certain tools, such as leniency, may have the effect of limiting de facto discretion for authorities in some circumstances, in order to preserve the integrity of the schemes.

← 11.  Within competition enforcement, such considerations may be less likely in the context of hardcore cartels compared to other potential breaches of competition law, such as those relating to other forms of agreements or potentially abusive conduct.

← 12.  There may also be a role for government to ask competition authorities to assess a sector through a market study. While such requests will not necessarily be followed, it may increase the chances that a sector is considered. As noted above, in some jurisdictions the government also possesses the ability to initiate studies that the competition authority must complete.

← 13.  There may also be scope to adjust the prosecution strategy, such as which court to bring action to if more than one is available.

← 14.  As discussed above, in some cases, potential competition issues will be high-profile and in those circumstances there may be value in investigating them to bring an evidence-based approach to public debate.

← 15.  The existence of ex-post merger control mechanisms may slightly alter this equation, even if there are still likely to be good reasons to intervene before a merger has been consummated if possible (OECD, 2022[92])