Chillin'Competition

On 1 April 2020 we lost Rubén Perea, a truly extraordinary young man who was about to start a career in competition law. We decided to set up an award to honour his memory, and to recognize the work of other promising competition lawyers/economists under 30. Today we are announcing the winner and runners-up of the 2nd edition of this award.

The winner of the 2nd (2021) edition of the Rubén Perea Award is JÉSSICA NEMETH, for her paper “Blockchain, Behavioral Remedies and Merger Control: How can access remedies do better?”.

Lass Tuesday Jessica and the winner of the first edition (Vladya Reverdin) received their awards from EVP Vestager, who very kindly accepted to give out the awards at her offices:

The jury also selected 4 finalists whose papers will be published in a special JECLAP issue. The finalists are:

-“Firm’s own price elasticity of demand in dominant position analysis” (by Jan Kupcik)

-“Trading Off the Orchard for an Apple: the iOS 14.5 privacy update” (by Alba Ribera)

-“Is ‘‘more’’ better? Broadening the right to sue in competition damages claims in both sides of the Atlantic” (by Grigorios Bacharis)

-“Should the New Competition Tool be put back on the table to remedy algorithmic tacit collusion?” (by Vasileios Tsoukalas)

Congratulations to Jessica, Alba, Jan, Grigorios and Vasileios, and many thanks to my fellow members of the jury, namely Damien Gerard, Lena Hornkohl, David Pérez de Lamo, Michele Piergiovanni and Gianni De Stefano.

We will soon be announcing the 3rd edition of the Rubén Perea Award. Stay tuned!

The lunchtime seminars at Cambridge’s Centre for European Legal Studies have long been an institution in EU law. Having followed the activities of the Centre since my days as a Teaching Assistant in Bruges, I was delighted to accept their invitation. You can access the video of my presentation here, and the PPT I used here.

The topic I chose, judicial review, is dear to my heart (and hopefully relevant for EU lawyers at large). My presentation focused on the complex relationship between law, policy and expertise. In our field, the EU courts are consistently asked to walk the fine line between the exercise of effective judicial review and the respect for the policy choices of the European Commission.

Judicial review is particularly complex considering that issues of law are subject to full review whereas policy-making is, if at all, only controlled for manifest errors of assessment. As I put it during the lecture, the challenge for the EU courts is thus to avoid the cross-contamination of standards of review.

Against this background, I discussed what I called some of the hallmarks of effective judicial review in the case law. They include the following:

1. Policy must be implemented through clear legal criteria that can be anticipated and subject to judicial review
2. Policy must be grounded on the expert consensus
3. Policy-making must be consistent with prior commitments
4. The relevant economic and legal realities must be considered
5. Consistency within and across provisions

On the first of these hallmarks, I pointed out that the interpretation of legal provisions must make it possible to distinguish between issues of law and issues of policy. The case law suggests that, where the interpretation would blur the line between both issues, it is unlikely to survive judicial review. CK Telecoms provides a wonderful example in this regard.

The second hallmark is one that I have discussed at length. The interpretation of the law must be grounded on the expert consensus (as opposed to informal, fringe or heterodox views). Ongoing developments raise a couple of fascinating questions:

• First: can an infringement be established in the absence of consensus? The rules on the allocation of the burden of proof would suggest that consensus is a precondition for a finding of infringement.
• Second: can the review of administrative action itself rely on informal analysis? The logic of the system would lead to the conclusion that it cannot.

Finally, the renvoi judgment in Intel was very useful to illustrate the third and fourth hallmarks (the fifth was left for a forthcoming paper). That judgment shows that the EU courts expect the Commission to behave in a manner consistent with its policy commitments (for instance, if a policy document declares that it will consider the coverage of a practice, one can reasonably expect it to look at the matter subsequently, unless it explains why it is not appropriate in a particular case).

The fourth hallmark addresses what is arguably the most consistent lesson of the past few years: any legal conclusions must result from a careful analysis of the relevant economic and legal realities. The object and/or effect of a practice cannot be based on hypotheticals or on abstract considerations. By the same token, arguments capable of casting doubts on the premises on which administrative action is based must be taken seriously by an authority if a decision is to survive judicial scrutiny.

It would be wonderful to get your views on the presentation. Have a wonderful weekend!

The Global Competition Law Centre will be holding its annual conference at the College of Europe in Bruges (as well as online) on 25-26 March 2022. For many years, and leaving Chillin’Competition conferences aside, this has been arguably the most substantive event on EU competition law. This is a conference with no agenda other than contributing to the understanding and the refinement of our discipline. Every year it brings together a balanced mix of competition law experts from public institutions, academia and private practice genuinely interested in discussing substance.

This year’s program is available here.

I will be taking part in panel 6 on the role of the EU Courts, together with General Court President Marc van der Woude, Judge Ingeborg Simonsson and Damien Gerard as Chair. My presentation will be titled “The role of the EU Courts: a view from the Bar“.

You can CLICK HERE for further information and registration. Whoever registers via this link (and lets me know) will get a post-conference beer at my favorite bar in Bruges (here is a view from that, the, Bar).