Relaxing whilst doing Competition Law is not an Oxymoron

On EU Competition Law Procedure

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Kluwer has just published Regulation 1/2003 and EU Antitrust Enforcement, a systematised article-by-article expert commentary on Regulation 1/2003, that also includes additional insights and critical views by a very impressive team of authors (featuring also some less impressive ones, namely Pablo and myself). The book has been edited by Kris Dekeyser, Céline Gauer, Johannes Laitenberger, Nils Wahl, Wouter Wils and Luca Prete.

I have already read various chapters in preparation for a 25 hour seminar on EU Competition Law Procedure that I start teaching today at the College of Europe, and it is a must-have for anyone interested in how EU competition law works in practice.

Luis Ortiz Blanco and I have authored the chapter on “EU Competition Procedure from the Perspective of Outside Counsel”, where we try to explain the beauty and the relevance of procedure from, well, the perspective of outside counsel. Kluwer has authorized us to post here the full text of our contribution. This is the introductory section:

“There is a hidden beauty to procedural matters. In a discipline as open and dynamic as competition law, substance tends to attract most of the attention. Many see substantive competition law as fertile ground to develop and debate creative theories but perceive procedure as a source of hurdles, dull tasks and deadlines regulated in black letter regulations or soft law instruments containing all relevant answers. From the perspective of outside counsel, this could not be further from the truth. Without procedure, substance is but abstraction. Procedure and substance live in symbiosis to the extent that the division between the two may not always be apparent.  At a time when, as we will explain below, the margin for substantive discussions in actual cases may be narrowing, procedural questions retain their interest. In practice, from the perspective of outside counsel, procedural questions are often the most interesting ones. While substantive competition law discussion may connect our discipline to economics, procedural principles and rules play a critical role in ensuring that competition law does not lose its last name.

There is also a hidden relevance to procedural matters. Procedural principles and rules have largely shaped the evolution of EU competition law, guided its application and contributed to its legitimacy and soundness. The evolution in EU competition procedures over the years has impacted, and in many ways even transformed, the nature of the work that outside counsel perform. In more immediate terms, procedural questions often determine the outcome of individual cases (‘It’s the procedure, stupid!’). This is particularly relevant to outside counsel. Unlike other repeat players, like competition authorities or courts, outside counsel are not bound by policy and consistency considerations but driven by a fiduciary duty to advance their clients’ best interests, generally within the context of a particular controversy. As outside counsel, both the nature and the measure of our work crucially depend on procedure. In what follows, we seek to explain how”.

To read the entire chapter (6 pages, you can handle that) and check out the full table of contents and authors, click on the link below:

Written by Alfonso Lamadrid

23 January 2023 at 9:30 am

Posted in Uncategorized

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