Chillin'Competition

Relaxing whilst doing Competition Law is not an Oxymoron

Revolving doors (a markup)

with 12 comments

76102.image2

Below in CAPS my markup on Alphonso’s post:

Nico and I have come up with a way of duplicating posts out of one piece of news; one of us writes something and then the other disagrees ;) [WE NOW TRIPLICATE MATE]

Last Tuesday Nico wrote a post titled “Revolving doors” in which he expresses the concern that “the cumulative effect of appointing previous Commission officials as judges, plus the very many référendaires who have spent some time in the EU administration may give rise to a pro-Commission bias at the Court“.

[I was actually in Luxembourg for a Court hearing -my first one in the front lawyer's row- when Nico wrote it, but I'll tell you about that some other time].

Without entering into the debate on whether there is or there isn’t too much of a pro-Commission bias at the Court (in my view, there is the same deference towards the public authority that we find in any European administrative system – in the US, on the contrary, that deference is less visible-), I don’t at all share Nico’s concern [CHECK CONSISTENCY: YOU DONT WANT TO ENTER INTO THE DEBATE, YET YOU EXPRESS DISAGREEMENT. WOULD SUGGEST DELETING THE INITIAL CAVEAT].

Assuming that there was such bias [YOU DEPART FROM MY INITIAL ASSUMPTION, WHICH POSTULATED THE ABSENCE OF BIAS, YET ANTICIPATED A RISK OF BIAS], I would argue that it has nothing to do with former Commission officials becoming members of the Court: [CORRECT. TO BE MORE ACCURATE, THIS POSSIBLE BIAS  HAS NOT ONLY TO DO WITH COMMISSION OFFICIALS BECOMING JUDGES AT THE COURT, BUT ALSO IS DUE TO SEVERAL OTHER FEATURES OF THE COURTS SYSTEM. A FREE PERSONAL SAMPLE: PRESUMPTION OF LEGALITY OF COMMISSION DECISION, DOCTRINE OF MARGINAL REVIEW OVER COMMISSION SUBSTANTIVE ANALYSIS, REPEATED APPEARANCE OF SPECIALIZED LEGAL SERVICE AGENTS ON BEHALF OF THE COMMISSION (AS COMPARED TO HIGH TURNOVER OF LAWYERS  REPRESENTING CLIENTS IN COURT), INEQUALITY OF APPLICANTS CHALLENGING A X-HUNDRED PAGES DECISION UNDER A 50 PAGES CAP ON SUBMISSIONS; SYSTEMATIC RELIANCE OF THE COMMISSION (READ THE LEGAL SERVICE) ON FORMS-BASED DEFENSE ARGUMENTS, ETC.]

Only two current Judges at the GC have previously worked at the Commission:  Marc van der Woude  (who was also a private practitioner, which should offset any bias; ask anyone in the business their opinion on him and you won’t hear a single negative one), and Guido Berardis (of whom I’ve also heard very positive things) [THE ISSUE IS NOT ABOUT WHAT WE PERSONALLY AND SUBJECTIVELY THINK ABOUT THEM; I TOO HOLD THOSE JUDGES IN GREAT ADMIRATION.  IT IS ABOUT COGNITIVE PROXIMITY TO CERTAIN IDEAS, OBJECTIVE QUIRKS AND BIASES, WHICH ARE HUMAN AND AFFECT ALL OF US, INCLUDING THOSE SEEN AS THE BEST PROFESSIONALS. THOSE THINGS HAVE BEEN ADUNDANTLY DOCUMENTED BY BEHAVIORAL ECONOMISTS]. 2 out of 27 (3 if the Committee gives the green light to Kreuschitz, which it undoubtedly should) does not appear to be an unreasonable proportion [UNLESS YOU PLEAD BEFORE A 3 JUDGES CHAMBER - THE STANDARD FORMAT FOR A GENERAL COURT CHAMBER - AND ALL THREE SIT IN IT]. Furthermore, all three of them were part of the Legal Service, which means that an important aspect of their work -aside from pleading- consisted in identifying flaws in the Commission’s work [NOT SURE THIS IS YOUR BEST SHOT. LET ME EXPLAIN. WHEN A DECISION IS APPEALED, THE LEGAL SERVICE HAS ALREADY CONCLUDED TO THE ABSENCE OF FLAWS [OTHERWISE THE DECISION WOULD NOT HAVE BEEN ADOPTED]. OUR JUDGES WHO IN THE PAST WORKED FOR THE LEGAL SERVICE WILL THUS LIKELY BE TEMPTED TO ASSUME THAT THE DECISION IS LAWFUL, AND DEFER TO THEIR FORMER COLLEAGUES ANALYSIS. WHY REDO THE ANALYSIS OF THEIR ***** PEERS? ].

If you ask me (and part of my job is to beat the Commission in Court), the problem lies not in Judge’s previous professional experience, but rather in Judges being appointed for political reasons other than their knowledge of the law (see here). And people who know about EU law are generally -there are a few exceptions- either academics (most of whom also have defined pro or anti Commission biases), practitioners (we may have the opposite bias, plus we’re too competition law oriented), and Commission officials.

In sum, I would argue that we need Judges that know their stuff inside out, no matter their nationality or whether they are national judges, academics, ex-Commission officials or former practitioners. [AGREED. I WOULD KEEP THE SENTENCE AS SUCH, AND SIMPLY ADD  "IMPARTIAL" AT THE BEGINNING:  "IN SUM, I WOULD ARGUE THAT WE NEED IMPARTIAL JUDGES THAT KNOW THEIR STUFF INSIDE OUT"]

A FEW OTHER COMMENTS/REMARKS:

YOU DO NOT ADDRESS THE REFERENDAIRES;

IN MOST MODERN SYSTEMS OF LAW, THERE IS A REAL SEPARATION BETWEEN PROSECUTORS AND JUDGES, AND FOR GOOD REASON; 

THE QUESTION IS NOT SO MUCH ABOUT WHETHER THERE IS OR NOT A BIAS. WHEN IT COMES TO JUSTICE, THE MERE SUSPICION OF A POSSIBLE BIAS IS INTOLERABLE. JUSTICE IS THE LAST RESORT REMEDY AGAINST RISKS OF ARBITRARINESS. IT THUS  MUST COMPLY WITH THE HIGHEST POSSIBLE STANDARDS OF IMPARTIALITY. PUT SIMPLY, IMPARTIAL JUSTICE MUST NOT ONLY BE DONE, IT MUST ALSO BE SEEN TO BE DONE.

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Written by Nicolas Petit

13 February 2013 at 4:37 pm

Posted in Uncategorized

12 Responses

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  1. Pretty superficial, I’m afraid. And naïve. For instance: do you really think that the College of Commissioners is bound by the opinion of the Legal Service?

    vp

    13 February 2013 at 5:23 pm

  2. Nothing to add to the post (in spite of the temptation to cuadruplicate posts) !

    Alfonso Lamadrid

    13 February 2013 at 5:50 pm

  3. For instance: do you really think that the College of Commissioners decides on the substance of competition cases?

    Nicolas Petit

    13 February 2013 at 8:35 pm

    • I expected a higher level of discussion. In the post it is said: “THE LEGAL SERVICE HAS ALREADY CONCLUDED TO THE ABSENCE OF FLAWS [OTHERWISE THE DECISION WOULD NOT HAVE BEEN ADOPTED]. This is not only wrong. It also shows a deep ignorance of how the Commission works.
      One blog less to visit…

      vp

      14 February 2013 at 4:37 pm

      • I must be a deep ignorant then. Until now, I just thought fair to assume that most formal Commission decisions were cleared by the Legal Service. But now that I read your comment, I assume I should change my mind. BTW, given that you seem to be an authority on the Commission, would you address my question (or maybe you’re just gone forever)?

        Nicolas Petit

        14 February 2013 at 5:16 pm

      • Guys, take it easy, We’re not talking life or death here.. ;)

        Vp: I’m sorry that you’re abandoning this blog. That’s perhaps too much of a punishment for a disagreement on one post..but readers rule.

        Nico: No, the College of Commissioners does not decide on the substance of cases. On the other hand, VP is right in that the Commission adopts decisions which may not have the Legal Service’s “avis positif”. In other words, decisions are sometimes adopted even if the LS sees flaws in them.

        Alfonso Lamadrid

        14 February 2013 at 5:57 pm

      • Seems we lost a very sweet reader

        Nicolas Petit

        14 February 2013 at 7:41 pm

  4. I agree, Nico. Caesar’s wife must be above suspicion…

    Dreaming

    14 February 2013 at 10:47 am

  5. Looks like “Nico” doesn’t take well other people disagreeing with him…
    Anyway, thanks Alfonso for not quadruplating and exposing us to even more red caps and petty aggressiveness.

    sophie

    15 February 2013 at 4:28 pm

    • Hello Sophie, I believe your comment calls for several clarifications. First, I did not intend to look agressive re. VP. Yet, with all due respect, I really question who’s agressive here. May I cordially invite you to read again VP’s comments: “this is naive”, “superficial”, and this is “deep ignorance”. I have to confess that I was really shocked when I read this, because I am not used to read such words on on blogs (incl. this one) + I myself do not use such words in my posts. To tell you the hidden truth, Alfonso and I even envisioned not publishing the comment on grounds that it was overly offensive – the policy being, we have never accepted such comments before (a reminder of this policy can be found here: http://chillingcompetition.com/2009/10/04/why-this-blog-and-who-i-am/). But since we believe in the merits of transparency, we eventually published it. I am very sorry it came accross like that.

      I did not intend either to sound an agressive note at Alfonso’s prose. I thought a markup would be funny, would take me less time to write, and would convey well my thoughts on this issue. On top of this, Alfonso and I have always been cracking jokes at each other (I have been his preferred target in the past), including more dubious ones. This never affected our friendship.

      A last remark: we designed this blog to promote discussion – and in particular the exchange of conflicting views – as well as to advance ideas in an unconventional manner. We believe this is a necessary evil, in a world corroded by political correctness. The somewhat straightforward tone used in our posts also seeks to combat two diseases that plague the legal practice and in turn that chill intellectual debate. First, we lawyers show a limitless appetite for complexifying otherwise simple things. Second, we lawyers make a somewhat obsessive use of disclaimers, waivers, caveats and other notes of semantical precautions for fear of being exposed to criticism. Often, when you talk to fellow lawyers, you end up not really knowing what they really think. The spirit of this blog is to promote discussion. And if I express myself with words that read harsh, it is precisely because I aspire to promote discussion. Honestly, if I was ever to dislike that someone expresses a contrarian view, I would not have launched the blog back in the day; expressed my view in public on so many occasions; and last but not least, I would not have invited Alfonso to join the fray (more fundamentally, I would probably not do a job with so much exposure). Again, I wish to express an apology if it came accross as “petty agressiveness”. That was really not my intention.

      Nicolas Petit

      16 February 2013 at 3:33 pm

      • VP’s comments, although trenchant, are hardly shocking (especially compared to some of the things said in Court about Commission decisions), and are after all responding to: “LET ME EXPLAIN. WHEN A DECISION IS APPEALED, THE LEGAL SERVICE HAS ALREADY CONCLUDED TO THE ABSENCE OF FLAWS [OTHERWISE THE DECISION WOULD NOT HAVE BEEN ADOPTED]” Apart from the shouting in capital letters, your own comment admits of no other position but your own, which is obviously wrong, even to those who are not Commission insiders – if it were otherwise the Director-General of the Legal Service would be more powerful than the entire body of Commissioners.

        This is not to deny the importance of the issue, but doesn’t everyone bring a certain amount of baggage with them to the Bench? Wouldn’t those who always represent cartelists tend also to bring prejudices (of an opposite sort) with them if they became judges? There are indeed some features of the Court system that make it unsuited to dealing with compex competition decisions (page limits surely work as a barrier to the Court’s proper understanding of a case), but some of these wider points look less convincing; the Legal Service lawyers of course have experience in litigation, but usually only before the Court in Luxembourg; if applicants use desk-bound lawyers in Brussels who have no relevant experience of arguing judicial review or competition cases before comparable national courts, that’s their choice. In any event, if the case arises out of a Commission investigation, the applicant’s lawyers will have spent far more time on the matter before it comes to court than the Commission lawyers and will therefore have the advantage of a much more detailed knowledge of the matter.

        Bewigged

        19 February 2013 at 7:43 pm

  6. Hello Eurobar (or Bewigged).You will see in the above discussion that I had written in a comment that I thought “fair to assume that most formal Commission decisions were cleared by the Legal Service”. I added “most” to my initial markup, because the initial text of the post to which you refer was indeed less nuanced. So here’s my question: can we at least agree on the fact that most formal decision get an avis favorable from the LS (or is this too is obviously wrong?). I am pleased to concede that I am a complete outsider. And if this discussion is any helpful, it is because you Commission officials can help us understand the internal powerplay.

    I also quite like your tranchent last point. Very true indeed that “the applicant’s lawyers will have spent far more time on the matter before it comes to court than the Commission lawyers and will therefore have the advantage of a much more detailed knowledge of the matter”. But again – and I believe I wrote this in my post – to me the problem of imbalance in favour of the Commission stems from a cocktail of institutional, sociological and legal features – to name the most problematic: marginal judicial review + reliance on forms based approaches – which altogether tilt the balance in the Commission’s favour. So whilst your point is valid, it, alone, fails to convince that the dynamics of judicial review in competition cases are unbiased.

    Nicolas Petit

    20 February 2013 at 9:20 pm


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