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Archive for October 13th, 2015

Koen Lenaerts elected President of the ECJ – His track record in competition cases

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Last week Belgian Judge Koen Lenaerts was elected by his peers as President of the ECJ. This was not surprising to many, as this was one of those things that was only going to be a matter of time.

Judge Lenaerts takes over the role of President at a challenging time for the institution, with the pending reform and amidst some internal turmoil, but few, if any, can dispute that he is the ideal man for the job.  His intellectual brilliance and encyclopaedic knowledge of all areas of EU Law cannot be questioned, but he is also a person with a vision for the EU and the institution, and one who is very much aware of the importance of the Court and of his role therein:  it is no secret that for many years he and his cabinet have made an effort to have a say in much of the Court’s output.

Due to personal reasons I got the chance to meet him in a non-professional context a number of years ago, when I was a student in Bruges. I remember having dinner with him in Luxembourg in which, I don’t know how, someone raised a competition law issue and mentioned the Piau case. Coincidentally, that same morning I had read an article on the case written by Denis Waelbroeck and my now co-blogger Pablo (see here) in Common Market Law Review, so I pretended to have my own smart opinion on the case by essentially repeating what I had read. Judge Lenaerts immediately responded that my opinion was very much the same he had recently read in an article, of which he perfectly remembered the content and authors. What struck me is not only that he remembered all that, but the fact that he had actually read it as soon as it came out, despite not being related to any cases of his!

Since then I admit I have always held him in particular admiration; one of the geeky first things I did when I arrived at Harvard to do my LLM was to go down to the dungeons at Langdell Library to find his LLM paper. I also am witness of his openness and availability to discuss with anyone (students, researchers, new court clerks) who would resort to him for guidance, as was the case for a number of close friends of mine.

Judge Lenaerts’ doctrinal contribution to EU law is enormous and well known. Less transparent –but also well- known – is his impact on the case-law of the Courts. But since readers of this blog mostly care about competition law, let me just focus on his contribution to our little world by reference to the cases in which he has acted as “rapporteur” (any errors in their identification are attributable to the Court’s search form!) As it happens, many of them deal with issues that are or have been of particular interest to me:

Whilst at the CFI, now General Court, he was a first-hand witness of the evolution of competition law. His first cases as “rapporteur” were some that now belong to the antitrust canon in relation to the definition of “agreement and concerted practice”, including a long series of cases in 1991 and 1992 related to the Polypropylene cartel, in which the CFI for the first time endorsed the “single and continuous infringement” characterisation”, as well as the famous Cimenteries Judgment (perhaps the lengthiest and most detailed in the history of EU competition law with 5134 recitals!!) which earned him fame in this sector. Something you might not know is that he had to cancel university courses for a couple of weeks to be able to lock himself up and write the Cement Judgment. As a matter of fact, these cases are, still today, the basis for any discussions on the assessment of evidence in competition cases (such as my own contributions, discussed in this blog last week). Following his experience in these cases Judge Lenaerts himself wrote down his thoughts here: “Some Thoughts on Evidence and Procedure in European Community Competition Law”.

He also was the rapporteur in Irish Sugar, a 1999 Judgment that for the first time accepted that there could be an individual abuse of collective dominance, a perfectly sensible notion that is specific to EU competition law and which, by the way, was the starting point for my LLM Paper at the College of Europe. Again, something you might not know is that, reportedly, he wrote a good part of the Judgment at pizza parlours where he took his daughters for long lunches.

In that same year he was also the rapporteur in Micro Leader v Commission, a case about geographic price discrimination and parallel imports of software from outside the EU and which is interesting when read together with Silhoutte and Javico (Pablo has recently written about this and will upload his piece soon).

In that period he also contributed to State aid doctrine with a number of cases (CETM, and all the saga related to the tax incentives provided by the Diputaciones Forales in the Basque Country) with which, again by coincidence, I have also worked extensively (both in current ongoing work and in my first paper on EU law, while in my 3rd year of law school). By the way, I will soon be commenting on the blog an element of those Judgments (about discretion and selectivity) that is likely to arise in the decisions on the tax rulings (some of which will apparently be adopted tomorrow). On this matter, btw, he is the author of a piece titled “State Aid and Direct Taxation”.

In 2003, shortly before being “elevated” to the ECJ, he was also the rapporteur in Michelin II, a case on loyalty rebates permanently under the spotlight (any student of D. Waelbroeck in Bruges is most likely to hear a critique on it every half hour), and which was confirmed (?) only last week in Post Danmark II (an interesting Judgment which nevertheless also included a nod to the more economic approach zeitgeist, as discussed here). He was also rapporteur in another interesting case decided on the same day, Cableuropa, the first ever dealing with a decision to refer a merger to a Member State. I had always assumed that he had been the author of TACA (a Judgment that has gone unnoticed for some but that contains some yet to be interpreted recitals; see here for the best discussion so far) but I´ve just found out it was Jaeger, Lenaerts being the President of the Chamber.

During his time at the ECJ Judge Lenaerts has focused mostly in other, more important, stuff. Nevertheless he was still rapporteur in the Judgment confirming the 38 million fine on E.ON for the breach of an inspection seal, and in a much more relevant case, Lélos (Glaxo Greece) involving parallel trade of pharmaceuticals and Article 102 (for my comments on the case, in Spanish and back in 2008, click here). His writings show that with time he has developed an interest for legal issues having to do with procedure and enforcement, rather than with the substance of EU competition law.

For a complete list of all his publications, including a good number of articles on competition law, see here.

Congratulations to him, and to his peers for the choice!

Written by Alfonso Lamadrid

13 October 2015 at 3:11 pm

Posted in Uncategorized