Do EU and U.K. antitrust 'bite'?: A hard look at 'soft' enforcement and negotiated penalty settlements

Journal article

EU and U.K. antitrust are contingent upon rigorous enforcement and the imposition of sanctions. Hard enforcement is key; antitrust loses its effect when it does not “bite.” Soft instruments (non-adversarial, informal) and negotiated penalty settlements may be used, but authorities are expected to exercise self-restraint. This article reveals that despite the prevalence of hard-enforcement rhetoric, the vast majority of actions taken by the European Commission (1958–2021) and German, Dutch, and U.K. antitrust authorities (2004–2021) were not fully adversarial. The hard-enforcement actions, moreover, were confined to limited practices and sectors. Despite the prominence of non-fully adversarial instruments in Europe, and in striking contrast to the United States, only limited attention was devoted to their existence and implications. Urging to take a hard look at soft enforcement and negotiated penalty settlements, the article systematically records the enforcement instruments and their particularities, questions their effectiveness, and calls to align enforcement theory to practice.

 

Authors: Brook, O

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: SAGE Publications
• Journal: Antitrust Bulletin
• Volume: 68
• Issue: 3
• Pages: 477-518
• Publication date: 2023-07-13
• Acceptance date: 2023-04-18
• DOI: 10.1177/0003603X231180245
• EISSN: 1930-7969
• ISSN: 0003-603X
• Language: English
• Keywords: soft enforcement; negotiated penalty settlements; hard enforcement; antitrust