Relaxing whilst doing Competition Law is not an Oxymoron

Archive for November 15th, 2010

An intellectual somersault??

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While reading last Friday an article written in a Spanish newspaper by Jesús Alfaro (who, by the way, has sometimes made comments on this blog), I came accross a reference to a Wall Street Journal piece that looked interesting.  I checked it and thought that it illustrates pretty well the way in which EU competition law is perceived by many in the US.  Check out this excerpt:

“So if you, as an executive, were to be so foolish as to ask your in-house counsel whether a particular action might run afoul of the EU’s increasingly complex and draconian competition regulations, both your question and your lawyer’s answer would become potential evidence against you.

Yet in the sort of intellectual somersault for which European competition law has become notorious, the Court declared that its ruling would not undermine businesses’ rights of defense. That’s because, according to the Court, “the rights of the defence is a fundamental principle of European Union law,” enshrined both in case law and in the Charter of Fundamental Right of the European Union.”

Aside from the fact that the second paragraph does not make much sense, the article reveals a misconception of EU competition law that I´ve observed many times in the recent past, particulalry on the other side of the pond. Antitrust/competition law is admittedly an area where legal certainty is sometimes the exception rather than the norm. However, are there really any reasons why EU competition law could be considered more of an”intellectual somersault” than its US counterpart?  I truly don´t see them.

Written by Alfonso Lamadrid

15 November 2010 at 7:11 am

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