Case prioritisation and prosecutorial discretion by competition authorities

This annex outlines the results of the OECD Secretariat’s survey of competition authorities on how decisions to prioritise or prosecute competition cases are generally made. It was prepared as part of the preparations for the Roundtable on Case Prioritisation and Prosecutorial Discretion. The survey was sent to OECD members, as well as associates, participants and invitees to the OECD Competition Committee in February 2026. The OECD received 30 responses, including from OECD member and non-member jurisdictions.

In total, the survey asked nine questions, of which seven related to the topic and two asked for contact information. The questions were designed to understand at a high-level the approach that competition authorities take to case prioritisation, as well as how they communicate this approach with the public. There were a mix of multiple choice and open questions.

This annex provides an aggregated analysis of the survey findings, mainly drawing on responses to the multiple‑choice questions, and supplemented by insights from the open‑ended questions.

The first substantive question asks respondents about the degree of discretion they have in responding to complaints that are brought to them. Specifically, the question asked:

To what extent do you have discretion to choose whether to investigate a complaint or allegation of a breach of competition law that is brought to your attention?

Respondents had the option of choosing between the following answers: “Significant discretion to dismiss without investigation”, “Some discretion but must explain reasons”, “Little discretion”, “must investigate and provide fully reasoned decision”, or “other”.

As seen above, the vast majority of respondents had at least some discretion to dismiss complaints, with an even split between those that can dismiss and those that must explain the reasons. That is, 14 (46.5%) respondents indicated that they had significant discretion to dismiss a case without investigation, while 14 (46.5%) others said that they had some discretion but must explain reasons. Two respondents (7%) provided that they had little discretion to choose and no respondents selected other.

Another question focussed on whether respondents had developed guidance on case prioritisation. It asked:

Do you publish written guidelines for how you take decisions on case prioritisation?

Respondents responded with: “Yes”, “No, but we have internal written guidelines”; “No, we do not have any explicit written prioritisation guidelines” and “other”.

Half of respondents answered that they publish written guidelines. 15 respondents (50%) answered that yes, they publish written guidelines for how they take decisions on case prioritisation. Six respondents (20%) stated no, but they have internal written guidelines. Nine respondents (30%) answered that they do not have any explicit written prioritisation guidelines. None answered with other.

Several questions concerned the factors that competition authority’s felt influenced their case prioritisation decisions.

One question focussed on the influence of high-level priorities and asked:

How likely is a typical individual case prioritisation decision to be influenced by high-level priorities set for the organisation such as focussing on an industry or type of conduct?

Respondents selected from the following options: “Very likely”, “Somewhat likely”, “Neither likely nor unlikely”, “Somewhat unlikely”, “Very unlikely”, or “We do not have high-level priorities”.

The vast majority of respondents (25) answered that it was either somewhat likely or very likely that an individual case prioritisation decision would be influenced by high-level priorities. That is, seven respondents (23%) responded that it was very likely that a typical individual case prioritisation decision would be influenced by high level priorities set by the organisation and 18 respondents (60%) selected that it was somewhat likely. Comparatively, four respondents (14%) said that it was neither likely nor unlikely, one respondent (3%) answered that it was somewhat unlikely, and no respondents answered that they had no high-level priorities.

Another question concerned the influence of substantial factors and procedural factors on prioritisation decisions. Respondents were asked:

For a typical case prioritisation decision, what is the balance between the influence of substantial factors (such as the theories of harm, its potential impact, potential legal precedents etc.) compared to procedural factors such as the likely resources required, its complexity, staff availability etc.)?

Respondents were asked to choose from four response options: “Substantial factors are more relevant”, “Even balance between the two”, “Procedural factors are more relevant”, or “other”.

17 respondents (57%) answered that substantial factors are more relevant. 13 respondents (43%) responded that the balance between the influence of substantial factors compared to substantial factors was even. No respondents answered that procedural factors were more influential or selected “other” considerations.

Several questions focussed on how the respondents made prioritisation decisions. One question concerned responsibility for those decisions. It asked:

For a typical case prioritisation decision, are decisions mostly made by areas of responsibility (i.e. driven by the leader of the cartels team) or by the most senior leadership of the organisation (i.e. taken by executive leadership or the board?

Respondents could choose between the following answers: “Mostly by areas of responsibility”, “Slightly more often by areas of responsibility”, “Even balance between the two”, “Slightly more often by most senior leadership”, “Mostly by most senior leadership”, or “other”.

Responses were largely balanced between decisions being made by areas of responsibility and senior leadership. Eight respondents (27%) answered that for a typical case prioritisation decision, the decision is mostly made by areas of responsibility. Three respondents (10%) responded with “slightly more often by areas of responsibility”. Five (17%) responded with an “even balance between the two”. Two respondents (6%) selected “slightly more often by most senior leadership” and ten (33%) responded with “mostly by most senior leadership”. Two (7%) respondents answered “other”. Among those who selected “Other,” one respondent stated that such decisions are taken by case team leaders or case handlers, subject to approval by senior management, whereas the other reported that they are made by a steering group comprising the relevant heads of unit and the head of the Competition Division.

The OECD conducted additional analyses on the results to understand whether there were clear patterns between how decisions were made and the characteristics of the competition authority. However, based on the data collected, there appears to be no clear trend between authority size (measured by the number of staff) and how they make case prioritisation decisions. There appears to be a slight pattern between the maturity of an authority and how it makes case prioritisation decisions, however. In particular, more mature authorities appear more likely to make case prioritisation decisions by areas of responsibility compared to less mature ones where senior leadership decisions were more likely. For example, respondents who answered mostly or slightly more by areas of responsibility had an average maturity of 59 years, whereas respondents who answered mostly or slightly more by most senior membership had an average maturity of 45 years.

Relatedly, another open question asked:

If responsibility for case prioritisation decisions sits with a particular person or decision-making body within the organisation, please specify the position or body (providing details of who sits within it).

Six (20%) respondents said that this question was not applicable to them. One respondent (3%) answered that they had no procedure or organisations that explicitly determined the priority of individual cases. Out of the remaining 23 respondents, eight respondents (35%) indicated that responsibility for all case prioritisation decisions rested with a single particular individual (such as the head of the authority or investigating unit). The other fifteen (65%) reported that responsibility lay with a panel or collective body. Separately, five respondents out of the 23 respondents (22%) reported having a dedicated unit or team involved in determining, or supporting the determination of, which cases to prioritise.

Another question examined whether formal decision points exist in the process of case prioritisation. It asked:

Does your organisation have formal decision points for investigations on whether to continue to prioritise them after being initiated?

Respondents were asked to choose from the following options: “Yes, at regular intervals”, “Yes, at specific decision points after information gathering and analysis”, “No formal points, but informal decisions taken by managers” or “other”.

Four respondents (13%) answered with “Yes, at regular intervals”. Fourteen (47%) answered, “Yes at specific decision points after information gathering and analysis”. Nine respondents (30%) answered that there are “No formal points, but informal decisions taken by managers”. Three (10%) answered with “other”.

Among those who selected “Other,” one respondent stated “No,” indicating that they had neither formal decision points nor informal managerial decisions. Another respondent answered that prioritisation decisions may be reviewed after the initial fact-finding and assessment stage by senior management, whereas another noted that, once proceedings are opened, the case proceeds without further prioritisation under the relevant legislative rules.