Case prioritisation and prosecutorial discretion by competition authorities

5. Practical aspects of case prioritisation

The previous section focussed on the conceptual framework that can guide how case prioritisation decisions are made by competition authorities. Such a framework forms an important part of how authorities decide which matters to pursue or not. This section will build on that framework to explore more practical aspects of how competition authorities operationalise case prioritisation decisions.

In particular, it will consider the approaches and processes that authorities use to make case prioritisation decisions, as well as exploring the organisational frameworks required for better decisions. The section also explores how authorities obtain and access information to inform their decisions and how this may evolve over the lifecycle of a case.

How competition authorities make case prioritisation policies will vary. What makes sense to prioritise at any given time will depend on a range of contextual factors, and may also depend on authority size, maturity and remit. For example, it has been argued that different approaches may be required between developed and developing jurisdictions, with the latter exhibiting greater preferences for cases that pursue social goals given their political context (Jennings, 2015[11]).

Adopting procedures can help ensure case prioritisation decisions align with the high-level priorities and strategies of the organisation. It can also allow a reflection of the cumulative effect of case prioritisation decisions over time, rather than just individual decisions. A potential risk of disjointed case prioritisation could be if specific aspects are systematically deprioritised, effectively creating de facto unofficial safe harbours without due consideration. For example, prioritising purely based on the size of a case could have the unintended effect of creating a perception that an agency will never prosecute below certain perceived thresholds, even if this may not be consistent with the intent behind legislation or overall strategy of the authority.

5.1. Authorities adopt different approaches to operationalise case prioritisation

This section considers the different approaches competition authorities, comprised of human beings, use to make case prioritisation decisions which, as seen above, often involve considering a potentially wide array of factors and regular reassessment.

As part of this process, competition authorities should consider developing procedures and policies to help guide their decisions. It appears that many are already doing so. According to the ICN survey on case prioritisation, 35 respondents out of 46 indicated that they had a competition enforcement prioritisation policy, with nearly three-quarters of those starting that it was a formal policy, whereas the others adopted a more informal approach (ICN, 2021[7]).

Prioritisation policies usually concern the factors that will be used to evaluate cases, as explored in the section above. In addition to those factors, procedures can help ensure that decisions are made efficiently across the case lifecycle, executed by the appropriate managerial authority and effectively balance competing considerations.

5.1.1. Prioritisation decisions can benefit from processes for reassessment as cases evolve

Kovacic (2018[18]) argues that the chances of success for an authority in selecting the right projects depends heavily on the quality of the processes in place to do so. Competition authorities of all sizes face a range of challenges and pressures, often having to respond to opportunities or threats that emerge out of nowhere, on top of day-to-day pressures. In these environments, it is hard to imagine the best decisions being made routinely without a framework to ensure consistency and appropriate rigour.

The most obvious discrete decision point for a case prioritisation decision is when a new potential case emerges, for example in response to a complaint, new piece of intelligence or an updated external steer. This involves an array of decisions, such as selecting the most appropriate tool in response to a potential issue, the scope and scale of any actions, as well as whether this decision has implications for any existing cases. However, as noted above, case prioritisation decisions also occur dynamically across all ongoing actions. Allowing a case to continue is, in effect, a decision that it remains a priority, as is not initiating a new case in response to an identified issue.1

In practice, competition authorities are unlikely to be able to function with high degrees of decisional uncertainty, with the continuation of a case being considered constantly. This would make progressing with cases challenging. While there may be elements of the sunk cost fallacy at play, it is hard to imagine a case very near completion being deprioritised unless significant new information came to light that fundamentally changed its prospects.

To make case prioritisation tractable, competition authorities may find it useful to create processes to formalise decision points, although informal processes can also act in the same way. For example, this could take the form of internal investigatory steps, which offer the opportunity to take-stock of updated information and re-evaluate the prospects of an action. These moments might be referred to as internal “stop/go” points, and also link to the point explored below regarding who makes decisions on prioritisation. Such mechanisms may not need not be overly formalised to be effective, with processes of different sophistication potentially being appropriate for different situations.

This is supported by the OECD survey, which indicates that while practices vary somewhat, most authorities implement formal decision making points during cases to decide whether to continue to prioritise them. 18 of the 30 respondents indicated that they had formal decision points at either regular intervals or at specific decision points after information gathering and analysis. In contrast, ten respondents noted that there were no formal points, but instead informal decisions taken by managers as cases progressed.

5.1.2. Case prioritisation decisions can be made at different levels within an authority

As noted previously, competition authorities are organisations made up of human beings. While hardly a revolutionary perspective, it is an important one in the context of case prioritisation, as decisions need to be made by individuals, or groups of them, within the authority. All individuals will face their own incentives, informational asymmetries and, like all human-beings, be susceptible to cognitive biases.2 Some senior leaders will make choices in the knowledge that their future re-appointment is dependent on how their decisions are received politically, others will have their own personal goals on what they want to achieve. As such, decision making processes should be designed to minimise the chances of bias, while also ensuring decisions reflect the long-term interest of the organisation. Internal processes and procedures may assist in making case prioritisation decisions.

Decision making can be top-down, for example board or executive level decisions, or bottom-up, where decisions rest within the case or tool level management, such as with the manager responsible for mergers or cartels. In practice, a mix of top-down and bottom-up decision making may be appropriate. Certain decisions may require approval from the most senior leadership, whereas others could be made through a delegated authority. Kovacic (2018[18]) recommends the establishment of screening committees that are responsible for case selection. Such a body could take a holistic look across cases and be comprised of appropriate managers. As explored further below, it could be linked closely to intelligence functions. The OECD Survey highlights that several competition authorities employ a range of set-ups to consider cases, either through pipeline teams or different forms of collegiate bodies formed to assess prospective cases.

Which processes work best for case prioritisation decisions will depend on the institutional setting of the authority. It will also likely vary depending upon the size of the authority and the scope of its mandate. For example, the larger the authority and broader its remit, the more need there may be for formalised delegation and processes for decision making. It may also be that a more mature authority will have more experience with routine matters and therefore require less senior oversight for minor decisions.

Competition authorities appear to have different practices regarding where case prioritisation decisions sit within an authority. The OECD Survey asked respondents whether case prioritisation decisions were mostly made by areas of responsibility or by the most senior leadership of the organisation. Overall, neither appear to take precedence over the other, although responses indicate that practices can range significantly between authorities. A slight majority indicated that top-down decision making by the most senior leadership was more common, with 12 indicating this was either slightly or mostly the case, and 11 suggesting that it was slightly or mostly the case that decisions were made by areas of responsibility. A further question probed for more information on where case prioritisation decision responsibility sat within the organisation. Of the 23 that provided information, 15 reported that responsibility lay with a panel or collective body, eight indicated that responsibility rested with an individual (such as the head of the authority or investigating unit). Of these 23, five also noted that they had dedicated units or teams to assist in deciding which cases to prioritise.

What is appropriate may also vary by tool, with different competition tools requiring different frameworks, for example if tighter deadlines apply.3 Different profile cases, due to the scale or potential impact, may also require different levels of oversight than others. More routine matters may not require approval from senior leadership in the same way that more novel issues do. As well as formalising decision points in cases, as described above, this will also concern designating decision makers or decision making bodies. An important part of this process is to identify the formal decision paths and points for different forms of decisions, and to map this into the organisational structure.

Where decision making sits may also vary depending on the timing of the case, with initial decisions to gather information on a lead being driven at staff level, before affirmation from top-down decision makers is required. As well as formal decision making points, informal decision making is also likely, in this context meaning ongoing decisions made by the appropriate authority or manager of the respective project. This could include how much resources to dedicate to an issue, as well as which potential issues to gather intelligence on, as well as case strategy.

Regardless of the mix of decision making, as highlighted in (ICN, 2010[8]), it will likely be a good idea for authorities to communicate their priorities and prioritisation policies internally so that they are better placed to act upon them. It will also allow staff to gather data to ensure that ultimate decision makers have the information they need. Organisation wide teams dedicated to policy can also be an effective way to help develop and implement effective priorities across an organisation (Kovacic, 2018[18]).

5.1.3. Balancing considerations is often qualitative but can also be quantitative

Across the factors identified in Section ‎4, several trade-offs are likely. For example, cases with the largest impact may not be the simplest or lowest cost. Cases that seek to provide precedential value will perhaps be more uncertain and complex, whereas cases involving larger markets may mean instigating proceedings against firms with significant financial resources, potentially increasing costs and even reducing the probability of success. Further, taking a case in a previously unexplored area of the economy may provide a boost to deterrence or useful information for an authority but could also be more costly and risky due to less prior knowledge. In the context of increasingly complex but expanding digital technologies, potentially impactful cases may be becoming increasingly difficult to predict and deliver.

Even where trade-offs do not exist, prospective cases are likely to have different profiles, offering varied potential motives for their selection. To return to a core premise for the need of prioritising cases, it will not be possible to do them all, at least at the same time or without sacrificing speed of delivery. When considering which cases to take then, different factors will need to be considered and balanced against each other.

In general, competition authorities will have experienced staff able to quickly form views on the key attributes of prospective cases. They will have knowledge on whether there is a strong chance of success, such as in finding a breach or of identifying competition issues, and the likely costs of an investigation. Broader contextual factors will also come to mind and form part of their thought process. Depending on where this experience sits within an organisation and whether decision making authority lies with them, there may then need to be a process for communicating these intuitions to senior leadership.

These judgements will reflect an assessment of the most pertinent factors and expectations on how things will develop. The ICN (2021[7]) suggests that competition authorities typically consider around five or six factors as part of their prioritisation policy. Jennings (2015[11]) argues that while a wide range of criteria could be relevant for prioritisation decisions, the main determinants should be the expected direct and indirect effects, even if there is no commonly accepted ordering of different criteria.

Even with experienced staff, authorities must balance different variables in their assessments, such as those set out in Section ‎4, and decide how to proceed. As explored further below, they will rarely do so possessing all information they would like. In this context, most authorities appear to take a qualitative approach to balancing the different attributes of prospective cases, deciding which factors are the most pressing based on their experience as well as the current circumstances. Box 4 above provided several examples of such approaches.

Some authorities, however, use quantitative approaches to help weigh different factors when deciding between cases. Box 5 highlights examples from competition authorities in Greece and Latvia. With these methods, weights can be attributed to different factors in advance and then for each prospective case, values are assigned for each factor. A benefit of such an approach is that it ensures a systematic assessment of all of the factors considered relevant. There will be limitations however, including a potential rigidity in the balancing of different factors and the difficulty in assigning numbers. The results of ex-ante impact assessments and ex-post evaluations could assist with these values, although it is also likely to involve an element of qualitative judgment. A purely quantitative approach to case prioritisation may not be sufficiently flexible or able to take into account every necessary factor required to make decisions. Nonetheless, the addition of a systematic tool that can be used to assist qualitative judgements may be useful for some competition authorities, and appears worthwhile considering.

Box 5. Examples of quantitative approaches to case prioritisation

Latvia’s Case Prioritisation Strategy

Latvia’s Competition Council (Konkurences padome (KP) applies a criteria-based scoring approach to assist in the prioritsation of its cases. In KP’s 2023 Case Prioritisation Strategy report, potential cases are given a score based on several criteria to classify them as high, medium, or low priority. Seven or more points are a high priority case, four-six is medium priority and less than four, low priority.

The criteria are grouped under three headings: the nature of the infringement (which is made up of the type of violation, impact and scale of breach, duration and continuity of the violation); market participants involved in the infringement (number of participants involved, market positions and whether repeated infringement by any of the market participants); and other relevant factors (such as the sufficiency of information about the violation, existence of alternative legal remedies for resolving issues related to the infringement, or the novelty of the question). For example, alleged cartel and exclusionary abuse of dominance conduct is given 2 points, while potential exploitative abuse of dominance is given 1.5. There are no negative modifiers. KP’s criteria and weighting are guided by its prioritisation principles, Regulation No. 179 (2016), EU case law and consultation with the Advisory Council (a body which promotes public participation in the development of competition policy).

Greece’s Prioritisation Decision

The Hellenic Competition Commission (HCC) prioritises cases with the assistance of a quantified points-based system, with high scoring cases being actioned ahead of lower-scoring ones. The establishment of a points-based system was developed from public consultation and was adopted in 2012 in decision 539/VII/2012. The points criterion and values were updated in 2024 in Decision 844/2024. This current criterion was informed (among other things) from the HCC’s experience, and the HCC’s decision to focus on critical sectors. To score a case, the HCC undertakes a cost-benefit assessment, with the impact of the conduct divided by the cost in time and human resources that will be required to establish the infringement.

A formula is thereby used: $\frac{\mathrm{I}\mathrm{m}\mathrm{p}\mathrm{a}\mathrm{c}\mathrm{t}\mathrm{ }\mathrm{ }\mathrm{x}\mathrm{ }2}{Time Saving and Human Resources} =Case Score$

The HCC quantifies the impact of a case by assigning fixed point values to different forms of conduct. For example, horizontal agreements receive three points, while vertical agreements receive two. Cases that possess certain factors also gain or lose points, for example those relating to essential products or services, have a large geographic scope such as extending to another EU member state receive an additional point on the impact score. The HCC assesses time and resource savings using a scale of one or two. Cases where the probability of proving the violation appears high will receive a score of one, whereas cases in which there is minimum evidence will score two. The system also applies multipliers and deductions to the case score. If the impact score exceeds three it is then doubled. Other factors such as imminent limitation period, non-hard-core vertical conduct, or that collection of any fine imposed would be difficult to collect (i.e. through bankruptcy), may reduce the score.

Sources: KP (2023[73]), Case Prioritisation Strategy; HCC (2024[74]), Decision 844/2024.

5.2. Case prioritisation requires information from a range of sources

A range of sources of information can help inform prioritisation. As noted above, case prioritisation decisions occur at multiple points across a case lifecycle.

5.2.1. Competition Authorities should develop pipelines of prospective cases

While case prioritisation decisions occur across case lifecycles, perhaps the most important will be which cases are initiated and which go no further. Prospective enforcement cases generally start with a potential infringement of the law, while market studies or other actions, may start with a suspicion that competition is not working well in a sector (OECD, 2018[75]). The quality of the cases that are ultimately selected through a prioritisation process rests upon the options available to authorities. A brilliant case prioritisation process will not enhance results if the quality of the case pipeline is low. More generally, if there are few options on the table, the need to prioritise is lower.

Complaints received by an authority will often be a good source for cases, particularly enforcement (ICN, 2021[7]). As discussed above, the extent to which a competition authority can prioritise is significantly affected by the degree of discretion they enjoy, often reflected by their ability not to pursue complaints or allegations of misconduct. Assuming discretion, reception of a complaint may trigger a case prioritisation decision, whether to initiate an investigation or not. Generally, an authority will have a process for reviewing complaints, either through a dedicated team or through the staff dealing with the relevant sector or tool.

As noted above in the discussion of competition enforcement, leniency applications will also likely be an important source of potential cases. In practice though, such applications are unlikely to require much prioritisation contemplation, other than an assessment of whether the conduct is indeed likely to relate to an obvious cartel. While leniency applications across the OECD have recovered slightly in recent years, there may still be reason to worry that the overall number of applications has decreased compared to the past (OECD, 2025[1]).

While leniency applications and complaints are useful sources of information, authorities will also likely wish to gather their own intelligence on potential competition issues and potential breaches of competition law. As noted above, a strong enforcement strategy is likely to include a mix of reactive and ex-officio investigations, due to the importance of signalling to firms the possibility that infringements of the law will be detected. This intelligence ideally creates prospective cases that the authority will then need to decide whether to pursue.

Intelligence and monitoring by the authority should be a source of cases. Interacting with market participants and other stakeholders can also be a useful source of market intelligence (ICN, 2021[7]), as can speaking with other competition authorities which could identify issues that are also relevant to their jurisdiction. Further, a range of techniques can be used by competition authorities to identify potential competition issues or infringements of competition law, and these can assist authorities (OECD, 2023[76]) (OECD, 2023[77]).

5.2.2. There are several sources of market intelligence to inform case prioritisation

Case prioritisation requires a judgement about the expected prospects of a case and the alternatives. This requires information. As part of the assessment of cases will be relative to the alternatives, a potentially useful starting point for making case prioritisations is to have detailed information at hand on the portfolio of ongoing or completed cases (Kovacic, 2018[18]).

Much of the information required to form an initial assessment of a case’s prospects can be fairly easily obtained, such as the nature of the markets involved, relevant goods and services, revenues and other financial information. Other critical information will concern the suspected harm to competition, including the nature of the harm, its likely magnitude, duration and whether there have been previous cases. A legal assessment will also likely be required if a breach of the law is suspected.

Information provided as part of a complaint may allow the authority to undertake an initial assessment of its attributes. In the first instance, this may reflect an assessment of how likely the complaint is to relate to genuine competitive harm and, if relevant, the likelihood of finding a breach of competition law. A practical step to assist authorities in assessing potential complaints more quickly is to ask complainants to provide information that is most pertinent to the prioritisation principles that will be used. This could be aided by complaint templates or forms that ensure authorities assess the complaints efficiently by focussing on the most relevant information (ICN, 2021[7]). Further interaction with the complainant may allow the authority to obtain further information and be better placed to consider the prospects for further investigation.

When there is no complainant or tip-off, intelligence and monitoring by the authority can help provide information to assist with assessments, including from other regulators or international peers. Co-operation with other competition authorities for example could provide information on the expected magnitude of harm if they are able to share experiences from previous cases. Another key source of information will be what can be collected from desk research. As artificial intelligence technologies improve, the ability to collect and assess more information from the internet may improve authorities’ ability to assess potential cases. In addition, previous cases in the sector will be a potentially useful source of information, allowing insights into the functioning of the market and potential scale of any harm.4

Another potentially useful source of information for prioritisation decisions can be ex-ante evaluations of impact or ex-post assessments of previous actions. These types of work can be valuable in helping assess the potential impact of cases. With ex-post assessments, for example, competition authorities can use knowledge of how their past actions have affected outcomes to help guide their future decisions, with an ongoing cycle taking place between decision to take cases and their evaluation assisting the next assessments (OECD, 2023[60]).

Notes

← 1.  This also includes decisions relating to the scope or strategy in relation to ongoing investigations.

← 2.  For a description of some of the literature on how biases may affect firms, see (Tuinstra and May, 2026[85]).

← 3.  As is often the case with merger control.

← 4.  In some jurisdictions, authorities are either not permitted or do not use confidential information gathered during one case within another.