‘Invisible, yet essential’: Dr Or Brook’s Modern Law Review article tackles priority setting by independent regulatory agencies

The School of Law’s Dr Or Brook has co-authored an article on how independent regulatory authorities set their enforcement priorities.

Dr Brook, Associate Professor of Competition Law and Policy, and her co-author Dr Katalin Cseres (University of Amsterdam), have just published their article in the Modern Law Review.

In modern democracies, social complexity is growing and the technical and legal knowledge necessary to navigate markets, society and the economy is in high demand. Therefore, which cases independent regulatory authorities (IRAs), such as competition authorities decide to enforce, and which they disregard is of vital importance given these authorities' limited resources.

Clear enforcement priorities allow IRAs to focus on matters of genuine economic, societal, and doctrinal importance. They also guarantee credible, independent, and accountable authorities.

However, priority setting as a blind spot of administrative discretion is often invisible and informal, and raises challenges from the perspective of the rule of law.

In their article, Dr Brook and Dr Cseres open the ‘black-box’ of priority setting:

• Firstly, they shed light on the historical development of IRAs’ priority setting powers, pointing to key differences between European and Anglo-Saxon jurisdictions.
• Secondly, they deconstruct priority setting’s composite nature by offering a novel typology of seven aspects of priority setting in IRAs’, capturing legal and non-legal elements of their process.
• Thirdly, they define public interest-based approach normative benchmarks to analyse and evaluate IRAs’ priority setting rules and practices against the principles of good governance.

They combine insights from top-down analysis of administrative law enforcement with bottom-up empirical research and engagement with IRAs using EU competition law enforcement as a case study. The empirical analysis is based on a systematic and comprehensive mapping (‘coding’) of the procedural and substantive rules and practices that define the way that the competition authorities of the 27 EU Member States, the United Kingdom, and the EU Commission set their priorities. The data was collected following written questionnaires and interviews with officials of the competition authorities, and following feedback from key policy makers on an early Policy Report drafted by the authors.

They conclude that, while discretion to set enforcement priorities is essential to guarantee efficient, effective, and independent decision-making by IRAs, the exercise of such discretion should be legally structured, confined and controlled. To comply with the rule of law and good governance principles, and to serve a democratic modern polity, priority setting rules and practices must be transparent and accountable. They also suggest that because priority setting is not only a matter of law, but is shaped by non-legal factors, future research on priority setting should remain an interdisciplinary exercise.

Dr Brook says:

This article is the outcome of years of research and impact activities. We hope that it will be the first step in informing the discussion and the development of priority setting practices of various types of regulatory authorities. We are looking forward to cooperating with legislators and policy makers to implement priority setting rules and practices that foster effective regulatory interventions and societal change.

Dr Brook and Dr Csere’s article is based on more than five years of research, done in partnership with IRAs, demonstrating the academic rigour underpinning publications of this kind. The collection of the empirical data and impact activities related to this study have been supported by funding of the UK ESRC Impact Acceleration Account. For more details click here.

The impact activities were also supported by the Michael Beverley Innovation Fellowship, University of Leeds.

They are currently working on a follow-up project with the United Nations Conference on Trade and Development (UNCTAD) on shaping enforcement priorities for competition authorities in developing countries.

Dr Brook is Deputy Director of the Centre for Business Law and Practice and can be found on X/Twitter: @or_brook and LinkedIn: Or Brook