The Enforcement of Competition Law—A Behavioral Law and Economics Perspective

Abstract

The choice of enforcement instruments in competition law has become a major debate around the world. In recent years, many competition authorities commentators have argued for a more “mixed” approach in antitrust enforcement, acknowledging that three enforcement instruments—private, administrative and criminal enforcement—are not substitutes to each other, but rather compliments, and should be better coordinated based on the strengths and weaknesses of each mechanism. This chapter address the insights of this issue by incorporating the recent development of behavioral economics and examine to what extent those insights lead to a different optimal mix of enforcement instruments. Behavioral findings can explain the ineffectiveness of some of the existing mechanisms and allow to provide more balanced criteria for determining the optimal mix of instruments in antitrust enforcement. This chapter discusses the optimal mix of enforcement instruments from the perspective of public and private enforcers. The findings of behavioral studies provided a more nuanced criteria when assessing the pros and cons of each instrument, and may be relevant to explain some of the reasons why the enforcement mechanisms become ineffective.