Priority Setting as the Blind Spot of Administrative Law Enforcement: A Theoretical, Conceptual, and Empirical Study of Competition Authorities in Europe

Abstract

Priority setting by independent regulatory agencies (IRAs) is an invisible, yet essential, component of regulatory law enforcement. The selection of which cases to enforce and which to disregard is vital given IRAs’ finite resources, and due to the function of concretising open‐ended administrative norms. Clear enforcement priorities allow IRAs to focus on matters of genuine economic, societal, and doctrinal importance, solve complex socio‐economic problems and build credible, independent, and accountable authorities. However, as a blindspot of administrative discretion, to date neither a normative framework to assess IRAs’ priority setting rules and practices nor a shared terminology to evaluate its different features has developed. This article fills this gap by developing a novel typology and normative framework to guide IRAs’ priority setting, based on a historical, conceptual, and empirical study focusing on the case of independent competition authorities. It combines insights from top‐down analysis of administrative and criminal law enforcement with bottom‐up empirical research and engagement with IRAs using EU competition law enforcement as a case study.