The European Commission’s Handling of Non-priority Antitrust Complaints: An Empirical Assessment

Abstract

The European Union legislature and courts leave the European Commission a wide discretion in dealing with antitrust complaints submitted to it. The principal external constraint is that if the Commission chooses not to pursue a formal complaint, it must reject it by means of a reasoned decision, which may be subject to judicial review. But the Commission’s administrative discretion is primarily structured and confined by self-imposed rules and principles. Most of these were introduced or formalized when Regulation 1/2003 was adopted and were intended to incentivize complainants to inform the Commission about potential infringements of the EU antitrust rules.

This article maps the precise boundaries of the Commission’s discretion to shelve non-priority antitrust complaints and subsequently examines how the Commission operates within that discretionary space. The empirical analysis is based on a unique dataset of all the rejection decisions the Commission adopted between 2009 and 2021, many of which were uncovered and obtained through access to documents requests. It reveals certain discrepancies between the stated rules and principles governing its treatment of complaints and their implementation in practice, which have the clear potential to undermine the incentives the current complaint handling system sought to create for the filing of formal complaints.

Note: Journals: “Reprinted from World Competition: Law and Economics Review, 45, no. 2, 2022, pp. 265 – 294, with permission of Kluwer Law International.

Keywords: antitrust, competition law, European Commission, complaints, prioritisation, rejection, enforcement, discretion, priority setting

JEL Classification: K00, K20, K21, L40, L41, L43, L44, L49