Varieties of Competition Enforcement Practices in the European Union? A Comparison of Germany and the United Kingdom

The European approach on competition policy is often contrasted with United States antitrust policies. However, also within the European Union (EU), approaches are more diverse than is usually acknowledged. In the EU system of multi-level governance competition policy is enforced simultaneously by the European Commission and national competition authorities. The decentralization of competition enforcement in the EU as a result of the so-called modernisation reform in 2002/03 even increases the importance of national competition authorities vis-à-vis the European Commission and makes the study of national enforcement practices the more relevant. Furthermore, national competition laws continue to co-exist with European provisions. Despite convergence in formal competition laws and the enforcement through independent competition authorities differences remain. In the areas of restrictive agreements and the abuse of dominance national competition authorities enforce both national and European competition law with some discretion as to which provisions to apply. In merger review, European provisions only apply when certain thresholds are passed. This raises crucial questions about the homogeneity in competition enforcement across EU member states and whether some competition authorities may be more prone to political or regulatory capture than others. Most comparative studies focus on the formal provisions of competition laws or institutional governance structures of competition authorities (such as their formal political independence) without paying attention to the enforcement of formal provisions in practice. Among the studies investigating enforcement practices of individual competition authorities a comparative assessment is missing. This article attempts to fill this gap by a longitudinal comparative investigation of the competition enforcement activities of the British Competition and Markets Authority and the German Federal Cartel Office. When and how do the two competition authorities intervene and what sanctions are imposed for competition infringements? Do European competition authorities enforce articles 101 and 102 of the Treaty on the Functioning of the European Union in the same way or can we identify different ‘varieties of enforcement practices’ within the EU? For that purpose, the article collects an original longitudinal dataset on the enforcement activities of the two competition authorities. The aim is twofold. The first aim is largely descriptive in nature to map and compare the enforcement activities of the two competition authorities over time. Second, the aim is to shed some light on possible underlying factors for variations in enforcement activities such as the severity of infringements, methodological assessment criteria or possible influences of changing political majorities. By comparing the enforcement activities of a liberal (United Kingdom) and a coordinated market economy (Germany) the article, furthermore, intends to investigate whether there are significant differences in competition enforcement activities between different types of capitalism. While Germany is usually perceived well by competition policy ratings the allegation that coordinated market economies are less committed to competition enforcement is long-standing. In particular, it may be expected that competition enforcement differs in areas related to broader institutional complementarities within the political-economy.