This project builds on, expands and updates the existing landscape of literature and research on the judicial review of competition law agencies in the European Union and the UK, undertaking the first comprehensive empirical study mapping the judicial review of NCA competition law decisions.
During the past 15 years, national competition agencies have gained an increasingly significant role across Europe, particularly following the entry into force of Regulation 1/2003 (the “Regulation”) and the ECN+ Directive (the “Directive”). A great majority of all 101 and 102 TFEU cases within Europe are enforced by the NCAs. The coherent and consistent application of EU competition was thereby always of importance, but the ECN+ Directive went a step further and aimed at partial harmonisation of institutional role of the national enforcers within the national context by setting out rules to ensure that NCAs have the necessary safeguards of independence, resources, and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU.
While the Regulation and Directive have harmonised many aspects of the NCAs’ institutional structures and procedural settings, the rules governing the operation of the national courts review systems were left largely untouched. Article 3(2) of the Directive merely provides a general obligation, according to which – Member States shall ensure that the exercise of the NCA’s enforcement powers is subject to appropriate safeguards in respect of the undertakings’ rights of defence, including the right to be heard and the right to an effective remedy before a tribunal. As a consequence of the principle of national procedural autonomy, there is a landscape of different court review systems in terms of the nature and degree of specialism of national courts, their respective roles and the scope and intensity of review available. Although the basic institutional structure of the various national judicial systems may be transparent, little is known of its actual functioning in a competition law context. The lack of attention to this pillar of the national enforcement system demonstrates a clear gap in the academic competition law literature, especially since previous limited studies on certain individual Member States have illustrated the importance of this pillar in ‘controlling’ the competition law work of the NCAs and thereby influencing the effectiveness of the NCAs. There has been considerable research and literature in the US on judicial controls of administrative agencies, but more limited study in the EU context. This project, therefore, will be posited in the context of the literature on agency discretion and judicial review, building on earlier research.
In light of the above, it is vital to reflect upon and compare how the judicial review mechanisms work in the different Member States, given its importance to the outcomes and overall competition law enforcement across the different Member States. Accordingly, this project undertakes an empirical study of all national judgments reviewing the application of Articles 101 and 102 TFEU and the national equivalent provisions between the entry into force of Regulation 1/2003 in May 2004 and April 2021. The empirical findings are used to (i) comprehensively map out the judicial review practices across the EU and the UK, comparing their quantitative and qualitative aspects across the various jurisdictions and (ii) to assess if and how the judicial review of the national competition law agencies safeguards the right to an effective remedy before a tribunal. More specifically, the project will seek to look at a range of issues such as the effects of ‘specialist’ courts v generalist courts.
The Team
Prof Barry J Rodger: academic, Law School, Strathclyde University, Director of Strathclyde Centre of Competition Law and Empirical Study, wide publications in EU and UK competition law, involvement in empirical research projects and lead investigator in various EU-wide competition law research projects; https://www.strath.ac.uk/staff/rodgerbarryprof/
Dr Or Brook: academic, Leeds Law School, experienced in empirical competition law research, highly acclaimed PHD, quantitative and qualitative empirical study, examining the role of public policy and non-competition interests in the multi-level governance enforcement system of EU competition law various subsequent publications, https://essl.leeds.ac.uk/law/staff/1069/dr-or-brook
Prof Francisco Marcos: academic, IE Madrid, published widely in competition law, particularly in relation to competition law enforcement by the Spanish competition authority and courts, and extensive involvement in various EU-wide empirical competition law research projects, https://www.ie.edu/law-school/faculty-research/faculty/francisco/
Dr Annalies Outhuijse: lawyer, Stibbe, Amsterdam, PHD focused on the effective enforcement of cartels in the Netherlands and a key aspect of her PHD and subsequent academic publications concerned empirical studies of judicial review of competition authority decisions in the Netherlands and various other EU Member States, https://www.stibbe.com/en/people/a/annalies-outhuijse
Prof Miguel Sousa Ferro: academic, Lisbon Law School and founding partner of Sousa Ferro & Associados, Lisbon, extensive publications in areas of EU and national competition law enforcement, private and public, and considerable experience of EU-wide comparative research projects, https://lisboa.academia.edu/MiguelSousaFerro
Prof Csongor Nagy: academic, Szeged Law School, Hungary, widely published in relation to aspects of EU and CEECs competition law enforcement, considerable experience in comparative research projects particularly involving CEECs, https://www.researchgate.net/profile/Csongor_Nagy
Prof Maciej Bernatt: academic, Faculty of Management, University of Warsaw, published widely in competition law, administrative law, constitutional law, and EU law, with a focus on enforcement of competition law and protection of fundamental rights (especially the right to a fair trial), as well as business-human rights relations, http://www.wz.uw.edu.pl/en/pracownicy/lista/maciej-bernatt/cv
