Chillin'Competition

There is a chance that some of you have realised that I have not been blogging in the past weeks. I have, I think, a good reason for this prolonged silence. I am about to finish a book that will come out with Cambridge University Press at some point next year. After much thinking (and some wise advice from, inter alia, Alfonso himself), it will be entitled The Shaping of EU Competition Law. And the painting you see above, by Juan Gris, is the one that I have chosen for the cover (what do you think?).

I have been revising the findings and I am at this stage where everything seems exciting . It is not only that the work is almost finished; it is also the feeling that comes from realising that the vague intuitions that I had at the beginning of the project seem to be confirmed.

So what is the book about, and what got me writing? Essentially, two ideas that I thought could be developed further:

• Institutions and substance in EU competition law

We all know, and agree, that the underlying institutional structure has influenced the substantive evolution of US antitrust. For instance, the fear of type I errors, which has an enormous influence on the shaping of the law, results from some institutional peculiarities of the system. The European model is very different. As a result, one can expect the law to develop differently (for instance, one can expect it to be far less concerned with Type I errors). This is fine and understood, but another question remains, I think, largely unanswered: how, in turn, has the institutional structure influenced the evolution of EU competition law? How, in other words, does the centrality of an institution like the Commission impact on the substantive dimension of the field?

• The need for comprehensive data

Last week at a conference, a speaker with whom I shared a panel emphasised the importance of supporting any claims with all of the case law, not only with the judgments that happen to support one’s views. I fully agree. I have come to realise, over and over, that our ideas about what the law is often change when one considers every single case. It takes time, but it is worth the effort. The problem I encountered when preparing the book is that it is difficult to find every case from a single reliable source.

The solution? A database including every Commission decision and every judgment of the EU courts. I could never have completed this database without the fundamental contribution of my amazing colleague Andriani Kalintiri. My idea is to reproduce the practices that are commonplace in other academic disciplines: with the help of CUP, I will make the data available to allow anybody to check and replicate the results of my findings.

How about the findings? Let me anticipate a couple of them:

• The intensity of judicial review

Some people like to say that the EU courts are overly or unduly deferential to the Commission. There are instances where no evidence (or only anecdotal evidence) is provided in support of this claim. Sometimes, the claim is not properly substantiated. As I explain in the book, if one intends to argue that courts are overly or unduly deferential, it is simply not enough to come up with the percentage of Commission decisions that have been quashed when challenged.

Any careful study would need consider a whole range of other factors. For instance, one has to compare like with like (e.g. a prohibition decision is not a rejection or a commitment decision). Secondly, the success of the Commission may very well be explained by risk aversion (if it appears that it only takes action where there is a clear-cut infringement, it is only reasonable to expect its decisions to be upheld, at least on substantive grounds). When one examines carefully the case law, and takes these factors into consideration, the picture that emerges is much more interesting and much more nuanced.

• Economics and EU competition law

According to conventional wisdom, the EU courts are reluctant to introduce economic analysis, which is relied upon by the Commission in its decisions and soft law instruments. I always suspected, and have argued in the past, that this depiction was far from the truth. I feel I can now properly substantiate this intuition. More often than not, economic analysis has been introduced by the EU courts, not the other way around. Moreover, economics plays a role that is often underestimated, or ignored: that of constraining, and defining the boundaries of, administrative action. In this sense, economics is seen, and has been used, by the EU courts as a valuable tool to make enforcement more predictable – and thus as a means to enhance legal certainty.

I hope to get back with more news soon!