EU Competition Law Enforcement: The Challenges of a More Economic Approach

The decentralization of the enforcement of EU competition law in the 2000s was meant to allow for more decisions, but the 'effects-based' approach actually increased resources devoted to each case and led to fewer overall decisions. The current emphasis on the completeness of the inquiry and the 'raising of the evidentiary bar' is leading to chronic under-enforcement, and the proof of anti-competitive effects is increasingly taking the form of a dialectic process. The administrative inquiry is becoming more burdensome as the Commission must deliver decisions which must resist the challenge even on the basis of evidence not adduced during the administrative procedure. The complexity of cases just increases the angles of attack, and the application of any formal economic test must be 'rigorously' done. These trends objectively imply more complex investigations and, critically, many more resources.