To the extent that guidance narrows these grey areas, this increases business certainty, fostering investment and lowering costs to business. Certainty and investment matter hugely to us. We also recognise, however, that complete predictability regarding the circumstances in which we will take enforcement action may undermine the deterrent effect of our work.
A potential frustration for a competition agency can be where the agency has followed its own guidance on policy in taking a decision, yet on appeal a court, which is not bound by the guidance of the competition agency, decides that a different approach should be adopted. In a way, the enhanced transparency provided by the competition agency about how it will approach decision-taking has not helped the agency. I would raise a question of whether robust processes to mitigate the risks … can mitigate the risk that our guidance is challenged or disregarded by the courts.
John Fingleton (Office of Fair Trading), “The importance of a competition agency providing guidance: the UK experience”.