Effective case prioritisation requires a balance between discretion, transparency, and cost-benefit based decision making. Competition authorities must make choices on where to focus their limited resources. Part of this can involve setting out high-level priorities that will guide the bigger picture from the authority going forward. Absent processes and frameworks for prioritising at the case level however, there is a risk of case level decisions not supporting the overarching objectives and overall efficacy may suffer. In practice, this need not be overly complicated, but could revolve around identifying the most important factors to be considered when assessing prospective cases. It could also include guidelines on the approach which can be communicated publicly and internally.
While there may need to be checks and balances, competition authorities should have enough to ensure they can prioritise across cases to maximise their impact in the pursuit of their objectives. In particular, authorities should be transparent about how they will prioritise cases and, where appropriate, provide information to relevant stakeholders on the reasons for the decisions they have taken.
In considering how to optimise case prioritisation, it is useful to set out the framework that underpins the analysis. This includes a range of factors that should be considered as different opportunities are weighed against each other. The main attributes to consider are the potential impact of the case, driven by factors including the likelihood of competition issues and the size of the market, and the likely cost of the action, for example reflecting its scale, complexity or risk. However, many considerations could legitimately drive a prioritisation decision, and authorities will likely be best placed to address these. It may not be possible to identify all potential factors in advance. Publishing details of how these decisions will be made can assist stakeholders in providing the most pertinent information and also improves transparency and accountability of the authority. While setting out this framework is useful, it is important to be realistic. Case prioritisation is important, but so is the work of delivering successful cases, so authorities are unlikely to systematically and meticulously analyse all of these factors for every conceivable action. Instead, agency and staff experience will likely guide many decisions, as well as established rules of thumb.
A purely quantitative approach to case prioritisation may not be sufficiently flexible or able to take into account every necessary factor. Nonetheless, the addition of a systematic tool that can be used to assist qualitative judgements may be useful for some authorities, and appears worthwhile considering. Authorities will also need to consider how best to get the information they need to assess prospective cases. This could include investing in intelligence functions, as well as conducting ex-post assessments to better understand the impact that their cases are having.
There are several aspects of case prioritisation that could warrant further exploration between delegates or further research. One concerns the extent to which public interest issues, for example on particular social factors, should be part of prioritisation decisions. Another is the balance between transparency, discretion and oversight, particularly in the current political economy. Linked to this discussion is the appropriate role of broader government priorities to filter into competition authority case prioritisation decisions, nothing the potential impacts on independence, accountability and democratic accountability. A more general point that may also relate to this, is how authorities can link and balance top-down and bottom-up priority setting effectively, including in how they provide transparency in their actions to government and the wider public.