From Hard to Soft Enforcement of EC Competition Law - A Bestiary of 'Sunshine' Enforcement Instruments

Abstract:     
For a number of reasons - notably its limited administrative resources - the European Commission (the Commission) seems to be relying increasingly on methods of competition law enforcement based on informal pronouncements (press releases, oral statements, etc.) and soft law instruments. Surprisingly, and in stark contrast with the extensive body of literature devoted to the Commission's more muscular enforcement initiatives under Articles 81 and 82 EC and the EC Merger Regulation (the ECMR), the pervasive use of soft law and informal legal instruments in European Community (EC) competition policy has gone relatively unnoticed.

In our view, these alternative mechanisms of competition law enforcement raise many important legal questions - not only theoretical but also of very significant practical relevance. For instance, is compliance with such instruments mandatory? Are they amenable to judicial review? Can they introduce new legal standards that depart from established case-law? To what extent can they be relied upon as a reference for competitive assessments, etc.?

The aim of this article is therefore to provide a broad picture of the various formal and informal instruments through which the Commission carries out the soft enforcement of EC competition rules. We refer to them as sunshine enforcement instruments and explain the reasons behind this label in Section I. We then provide a typology of those various instruments in Section II. Finally, we explore their advantages and drawbacks in Sections III and IV respectively. Section V concludes.

Keywords: Competition Law, Enforcement, Soft law, Informal Pronouncements, Follow-on Actions

Working Paper Series