Alternative Enforcement of Competition Law

Abstract

Competition authorities are known for imposing enormous fines on companies that have infringed the law. However, most authorities are equally active – if not more so – in educating, deliberating, influencing or preventing, to which end they have different enforcement instruments at their disposal. Imposing a fine (or issuing an order, or imposing a periodic penalty payment) through a fully adversarial procedure can be characterised as formal, based on a vertical relationship between companies and competition authorities, deterrence-based, punitive, reactive and case-specific. Alternative enforcement – by contrast – entails a deviation from command-and-control style enforcement by using enforcement instruments and it can be characterised as informal, horizontal, compliance-based, restorative, preventative or efficient, or a combination of one or more of the above. This research analyses and compares the use of certain alternative enforcement instruments (negotiated procedures, markets work, individual guidance and compliance programmes) by the Dutch Autoriteit Consument en Markt, the UK Competition and Markets Authority and the French Autorité de la Concurrence. These instruments are evaluated in the light of procedural safeguards as well as requirements for instrumentality. In this evaluation, the relationship with the European level is touched upon as well. In doing this research, the author performed an extensive case analysis, as well as research internships within the first two authorities.