JUDICIAL REVIEW IN EUROPEAN
UNION COMPETITION LAW:
A QUANTITATIVE AND QUALITATIVE
ASSESSMENT
Damien Geradin, TILEC & Howrey LLP
Nicolas Petit, ULg
Purpose of the presentation
• Why does judicial review matter in EU
competition cases?
• Provide some quantitative and qualitative
information on judicial review in EU
competition cases
• Demistify the « success story » of judicial
review under Article 102 TFEU
Outline
1. The functions of judicial review
2. Importance of judicial review in EU
competition law
3. Nature and standard of review applied by the
EU courts in competition cases
4. Quantitative assessment
5. Qualitative assessment of the GC’s setting of
normative standards function
1.
The Functions of Judicial Review
• The case for a functional approach
• Typology of the functions of judicial review
– The Lawyer’s Standpoint => Safeguarding
Universal Values
– The Economist’s Standpoint => Promoting Welfare
• Eradicate decisional errors
• Establish normative standards
– The Political Scientist’s Standpoint => Ensuring
Accountability
2.
Importance of Judicial Review in
EU Competition Law
• Importance of judicial review in competition
law
– Competition law is prone to errors
– Competition enforcement interferes with
fundamental rights
– Competition law may not be enforced in the
public interest
2.
Importance of judicial review in
EU competition law
• Several idyosincracies explain that judicial
review really matters in EU competition law
– Inadequate enforcement structure
– Insufficient checks and balances
– Influence of Commission decisions at national
level
3. Nature and Scope of Judicial
Review in EU Competition Law
• Articles 263 and 261 TFEU
• The institutional balance and the
commission’s discretion (+ ossification risk?)
• Full (law) v. Restrained (complex economic
assessments) judicial review
3. Nature and Scope of Judicial
Review in EU Competition Law
• Permeable distinctions
– Errors of law
– Errors of fact
– Review of « complex economic matters »
• Judge Forwood on the « nature » of complex economic
assessments
• The Tetra Laval standard …
• … and the Woodpulp good old days
4. Quantitative Assessment
• Methodology
• Testing the GC’s performance in relation to the
protection of fundamental rights (see paper)
• Testing the GC’s performance in eliminating
decisional errors
– Data is difficult to interpret under Article 101 and
EUMR
– Data is troubling under Article 102 TFEU => GC never
annulled in full a Commission decision / all cases
involve partial annulments on peripheral issues
4. Quantitative Assessment
• Hypothesis 1 – Commission Always Right?
– Implausible success story as errors are part of
human nature
– Benchmarking
• In other areas where standard is possibly lower
(EUMR), and negative decisions are less frequent, rate
of annulment is higher
• In other areas where standard is equal, rate of
judgment higher
– Applicants still lodge Article 102 TFEU proceedings
(belief that decisions are flawed is strong)
4. Quantitative Assessment
• Hypothesis 2 – Judicial immunity through
formalistic normative standards
• Quantitative assessment
– Proxy 1: Degree of reliance of old, forms-based
precedents => most cited cases are Hoffmann La
Roche and Michelin II
– Proxy 2: Presence of mainstream economic
concepts in Article 102 TFEU Judgments
• “Consumer welfare” is not even cited once
5. A Qualitative Analysis of the “Setting
of Normative Standards” Function of the GC
• In other areas, the GC has been keen on defining,
and refining normative standards (GSK and
Airtours)
• Under Article 102 TFEU, reliance on formalistic
normative standards, which fare poorly with
mainstream economic theory
– The case-law on abusive tying
– The case-law on abusive rebates (Tomra v.
Commission, T-155/06)
• Generalized risk of type I errors + chilling effect
on attempts to modernise competition regimes
accross the EU