Chillin'Competition

On Thursday of last week, I had the privilege to present parts of my research with the Amicale des Référendaires (the association of current and former law clerks of the CJEU).

My (animated) presentation, available in French here, addressed the issue of judicial review of administrative action in EU competition law.

As far as I am concerned, it was a wonderful opportunity to reflect on the respective roles of judges and academics when trying to make sense of the law (and there is hardly a better audience for an academic).

Court judges invariably emphasise at conferences that their role, at the end of the day, is to provide an answer to a given dispute in a specific factual and legal context. I always try to bear this idea in mind.

What is the role and potential contribution of academics, against this background? I see it as taking distance from concrete cases and trying to figure out whether there are patterns in the behaviour of the relevant actors (which explains the choice of cartoon for my presentation).

The importance of judicial review

Discussing the importance of judicial review before people who deal with it on a daily basis and know the intricacies of the subject much better than I do may come across as strange. What was my point? To explain that, as a result of my research, I am better able to understand, in a concrete way, the potential negative consequences of undue deference.

One needs to move away from a static perspective of administrative action and judicial review, which sees disputes as a one-shot game. We should always bear in mind that (i) law is, by definition, a dynamic phenomenon and that (ii) administrative authorities like the Commission are repeat players.

Two conclusions follow from these insights. First, administrative authorities may behave in a way that takes long-term considerations into account. By the same token, it may be possible to identify patterns in the behaviour of such authorities. Second, deference by courts can be expected to negatively impact the consistency and predictability of the law.

Are there distinct patterns of behaviour on the part of the Commission?

One of the most important lessons I have drawn from the systematic study of the EU competition law system is that one can identify distinct and persistent patterns of behaviour by the Commission as a competition authority. These patterns last to these day, and are useful to identify the source and likelihood of errors of law.

A central question in this sense relates to the way in which the Commission engages with the case law. Is it risk averse, as a frequent narrative suggests, or is it risk prone? My research findings do not provide much support for the risk aversion narrative.

Across provisions and over time, the Commission tests and has tested the boundaries of the case law, occasionally departing from it. It is not difficult to think of examples of this pattern of conduct (Irish Sugar, Langnese-Iglo, Microsoft, IMS Health, O2), which one should acknowledge when thinking about judicial review matters (and the related issue of legal consistency).

Expert consensus and judicial review

I was interested to find, in my work, that the likelihood of annulment rises where the Commission departs from, or fails to acknowledge, the experts consensus in its decisions. Suffice it to think in this sense of Airtours and Cartes Bancaires.

This is, I would say, a natural and expected reaction in a judge. Ignoring the expertise developed incrementally over the years comes across as arbitrary and capricious. As I explained in the past (see here), it is difficult to see how judicial review can be meaningful if we allow an administrative authority to choose what to believe.

From a normative perspective, I see the expert consensus as the basis on which administrative action should take place. From a positive perspective, I believe this is also the EU courts’ position (in a way, the Tetra Laval formula appears to capture this idea).

The issue of expert consensus and its relationship with administrative action and judicial review is fascinating. I look forward to digging deeper into it and (if there was any doubt) sharing my findings here.

[UPDATE: Since I have received the request from some of you to get an English version of the slides, you can find here the presentation I gave when I launched my book last year. There is quite a bit of overlap between the two presentations.]