Given the multifaceted economic and legal considerations, fair and effective enforcement of competition law is a complex task. It is rendered all the more daunting with the added requirement for the optimal level of competition law enforcement.
Optimal enforcement is arguably more important in competition law proceedings than in other areas of law enforcement because inadvertent under- and over-enforcement may actually end up harming competition itself. For example, if a competition authority attempts to over-enforce, it can actually make conduct illegal that was otherwise legal and, thus, prevent an enterprise from competing on merits. The result would be counter-productive to the objectives of competition law (by harming level of competition in the markets).
Given this debate, the story of competition law has been the story of competition between tests and concepts that are either presumption or form based (thus, simpler and providing legal certainty) and tests that are effects based – i.e. using economic/ quantitative techniques and are, thus, more accurate (and more conducive to the idea of optimal enforcement).
Recently, although the debate in this regard has surrounded the applicability of the effects-based test to prohibite abuse of dominance, companies need to be able to formulate policies that re-assure them of their legal certainty – stakeholders, therefore, await fast-track consensus.