Competition enforcement covers several distinct areas with different legal tests, and understanding the distinctions clarifies what regulators can and cannot do.
The categories
Agreements between competitors that restrict competition, including price fixing and market allocation, which are treated most severely.
Abuse of a dominant position by a single firm.
Mergers that would substantially reduce competition.
Which are assessed under different tests and require different evidence.
Cartels
The clearest category, and enforcement is well established.
Leniency programmes, granting immunity to the first participant to report, have been the principal detection mechanism.
Which works by destabilising cartels — each participant fears another reporting first — and it has produced most major cartel cases.
Penalties are substantial and, in some jurisdictions, criminal.
Dominance
Being dominant is not unlawful. Abusing dominance is.
Which requires establishing the relevant market, establishing dominance within it, and identifying conduct that constitutes abuse.
Market definition is frequently the decisive issue, since a firm dominant in a narrowly defined market may be a small participant in a broader one.
Conduct assessed as abuse includes exclusionary pricing, tying products, refusing access to essential facilities and self-preferencing.
The consumer welfare standard
The dominant framework for decades, assessing conduct by its effect on consumers, generally measured through prices and output.
Which produced a permissive approach to conduct not raising prices, and it has been challenged.
Critics argue it fails to capture harms including reduced innovation, effects on suppliers and workers, and accumulation of market power that raises prices later.
Enforcement agencies in several jurisdictions have shifted toward broader assessment, which is contested and is a live legal question.
Digital markets
Present specific difficulties for traditional analysis.
Services provided at zero monetary price complicate price-based tests.
Network effects produce concentration through mechanisms that are not obviously anticompetitive.
Data accumulation creates advantages that traditional frameworks address poorly.
Which has produced ex ante regulation in several jurisdictions — rules applying to designated large platforms in advance rather than case-by-case enforcement afterwards.
Merger control
Prospective assessment of whether a proposed transaction would harm competition.
Which requires predicting counterfactual outcomes, and retrospective studies have found that some cleared mergers did produce price increases.
Killer acquisitions — buying nascent competitors before they grow — fell below notification thresholds in many jurisdictions, which several have since addressed.
Remedies
Behavioural remedies require ongoing conduct, which requires monitoring and has a mixed record.
Structural remedies — divestiture — are cleaner and harder to impose.
Which is why regulators generally prefer structural remedies where practicable and accept behavioural ones frequently.
Following it
Decisions are published with reasoning in most jurisdictions, frequently at length.
Which explains the market analysis and the evidence, and it is considerably more informative than coverage of the outcome.
Private enforcement
Actions brought by injured parties rather than by regulators.
Which exists in most systems and varies enormously in practical availability, depending on standing rules, damages availability and litigation costs.
Collective actions allowing many small claims to be aggregated have been introduced in several jurisdictions.
Labour markets
Competition analysis has been extended to employer behaviour — no-poach agreements, non-compete clauses and wage-fixing.
Which had received limited attention historically despite the same logic applying.
Enforcement action and regulatory restrictions on non-compete clauses have followed in several jurisdictions.
International coordination
Large transactions require clearance from multiple authorities, which can reach different conclusions.
Which produces coordination through cooperation agreements and information sharing, and divergence still occurs.
A transaction blocked in one significant jurisdiction generally cannot proceed globally, which gives individual authorities substantial leverage.
Interoperability and data portability
Remedies requiring firms to allow interconnection or to permit users to move data.
Which addresses network effects by reducing switching costs, and it has been mandated in several regulatory frameworks.
Implementation is technically demanding, and effectiveness depends on the detail of standards and on ongoing compliance.
Standard essential patents
Patents necessary to implement a technical standard.
Which create a specific problem, since holders can demand terms after an industry has committed to the standard.
Commitments to license on fair and reasonable terms address this and generate substantial litigation over what those terms are.
Resources
Competition authorities are small relative to the firms they investigate.
Which affects what can be pursued, and resource increases have been a recurring policy question.
Merger notification
Transactions above defined thresholds must be notified before completion in most systems.
Which allows review before the transaction occurs, and thresholds based on turnover missed acquisitions of firms with little revenue.
Transaction value thresholds have been added in several jurisdictions specifically to capture acquisitions of early-stage firms.
Consumer outcomes
Retrospective studies examining whether cleared mergers produced price increases are the direct evidence on enforcement effectiveness.
Which have found effects in several sectors, prompting reconsideration of the standards applied.
Ex post evaluation of decisions is conducted by some authorities and remains uncommon.
Which is why publication of decisions with full reasoning matters for external assessment.