Chillin'Competition

We have already commented the Court’s 2009 ruling in Glaxo.

In going through the judgment  this morning, I got shocked again.

Frankly speaking, this judgment is a mascarade. What the Court has thrown in this judgment is a straightforward statement that it has no interest in substantive competition law issues. To justify this, the Court dissimulates itself behind (i) the black letter, old-Treaty wording (name it judicial textualism); and (ii) its existing case law (name it judicial conservatism).

Look closely at §§59-63. In fact, it takes the Court just a few lines  to quash the CFI’s ruling, which raised a novel – and worth discussing – question of substantive competition law (i.e. the role of consumer welfare under Article 101 TFEU) . Here is what the Court says in this case:

1. We’ve said that a practice restricting parallel trade is a restriction by object a million times (§59)

2. This applies to pharmaceuticals. The AG has said so (!), and we made a case in pharma a while ago. (§§60-62)

3. The wording of the Treaty does not talk of consumer welfare. Competition is thus protected as such.

4. **** off

A discussion of the very issue (regardless of its outcome) would have been – at the very least – welcome. I believe, indeed, that the role of the ECJ is not only (1) to scrutinize cases (judicial review) but (2) to take stances on novel issues and set substantive standards (rule making).

Two final remarks:

1. In the EU, executive and legislative institutions can be prosecuted for failure to act. Why is the Court immune from such proceedings?
2. Lately, the Court has delivered remarkable judicial output in other fields (e.g.   institutional law, the four freedoms, etc.) Why has substantive competition law been left unaffected by this evolution?

(Image possibly subject to copyrights: source here)