Brexit, experts, courts and EU competition law
One of the most distressing aspects of the EU referendum campaign in the UK was the way in which expert advice was ridiculed by Vote Leave. Hard facts, evidence and serious research were dismissed and derided as irrelevant ‘scaremongering’. This high-point of this feast of anti-intellectualism was no doubt reached when Michael Gove, one of the leaders of Vote Leave, infamously declared that ‘people in this country have had enough of experts’.
As President Obama puts it, when ‘experts are dismissed as elitist, then we’ve got a problem’. This trend is now making the headlines the world over (thanks, Mr Trump), but it has a familiar flavour to us competition lawyers and economists. Expert-bashing has long been fashionable in our field. Some lawyers and academics believe it is cool to dismiss economic expertise as irrelevant at best and suspicious at worst. We have all heard that ‘economists use too much math’, ‘they make comically unrealistic assumptions’ and that, in any event, ‘the only thing they want is their consulting business to grow’.
The problem with expert-bashing is that it is systematically given considerable prominence in public debates. Serious economic research tends to be put on a par with nonsense, intuition, or outright falsehoods. As a result, the two are presented as being equally respectable. A serious paper published in Econometrica is worth as much as someone’s lay opinion, which may not be grounded on formal analysis. And the latter may be wittier, more controversial or more spectacular (i.e. a la Boris Johnson, with or without the hair).
I often think about it, and I worry. But when I look beyond the short run I tend to be more optimistic. My impression is that the ‘white heat’ of science and progress, to paraphrase Harold Wilson, irradiates everything in the end. As far as EU competition law is concerned, my optimism comes from the attitude of the EU courts, which, at critical moments, have always sided with formal analysis and consensus positions. Just think of AKZO, Airtours, Tetra Laval or Wood Pulp. This is not a coincidence. The core task of courts reviewing administrative action is after all to protect citizens against charlatans, megalomaniacs and, to be sure, the occasional errors made by authorities. And this task cannot be meaningfully achieved without listening to experts.