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‘Law, Policy, Expertise: Judicial Review in EU Competition Law’ | My CELS seminar at the University of Cambridge

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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!

Written by Pablo Ibanez Colomo

18 March 2022 at 1:19 pm

Posted in Uncategorized

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