Le contrôle juridictionnel en droit européen de la concurrence : une évaluation quantitative et qualitative

Ever since the creation of the General Court (“GC”), the effectiveness of judicial review in European Union (“EU”) competition cases has sparked intense scholarly debates. This paper seeks to further contribute to this discussion in three ways. First, it devotes some space to fundamental, yet often overlooked questions, such as the goals or functions of judicial review and why judicial review of administrative decisions is important; particularly so in competition law matters. Second, this paper attempts to throw some empirical light on the GC’s judicial review of European Commission (“Commission”) decisions in the field of competition law. Third, it places a specific emphasis on the particular situation of abuse of dominance law, where the GC has exercised its judicial review power with more restraint than in other areas of competition law (such as restrictive agreements and mergers). With these goals in mind, this paper follows a five-stage progression. First, on the basis of a survey of the relevant legal, economic and political science literature, it defines the functions of judicial review and identifies a set of indicators which can be used to assess the performance of the GC’s judicial scrutiny (Part I). Second, it explains why judicial review in EU competition law cases is of critical importance notably given the institutional and procedural deficiencies of the EU enforcement structure (Part II). Third, it discusses the nature and standard of review currently applied by the GC with a particular focus on the degree to which the GC is willing to review “complex economic matters” (Part III). Fourth, it provides some quantitative data on the case-law of the GC to assess whether several goals or functions attributed to judicial review by the scientific literature are met (Part IV). Finally, this paper takes a closer look at the (controversial) case-law of the GC in the field of Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) (Part V)

Judicial Remedies Under EC Competition Law: Complex Issues Arising from the Modernization Process

Article 230 EC allows any natural or legal person to institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former . Private parties thus frequently rely on this provision to challenge acts adopted by the European Commission (hereafter the Commission ) in accordance with the powers granted to it in the field of competition law. While this particular subject has generated extensive scholarly analysis, the last decade of reforms of EC competition law often cited as the modernisation process makes it particularly necessary to re-examine this topic. Two major developments in the field of competition law give rise to novel and complex questions with regard to judicial review pursuant to Article 230 EC. First, the reforms introduced by virtue of the modernisation of the implementation of EC competition rules have generated a proliferation of new acts whose legal character (and therefore by implication the possibility to challenge these new acts before the European Court of Justice hereafter, the ECJ and the Court of First Instance hereafter, the CFI ) is not necessarily clear. This is the case, for example, of the multitude of soft law instruments (notices, guidelines, etc.) which the Commission adopted with a view to clarifying its decisional practice, as well as new binding acts envisaged by Regulation 1/2003 such as findings of inapplicability and decisions to remove a case from a National Competition Authority. Second, the increased emphasis on the use of economic analysis following the successive reforms of the rules pertaining to horizontal and vertical agreements and merger control has transformed competition law into a technically complex subject matter whereby economists are stealing a lead over lawyers. The corollary of this development could be to limit the scope of judicial review exercised by generalist EC and national courts. Indeed, faced with having to make complex evaluations involving the weighing up of anti-competitive restrictions and efficiency gains, the generalist judge could quickly find himself lost. Therefore, the more opaque and complex a particular case is, the wider the Commission s discretion in its decision making becomes. Certain recent judgments of the CFI concerning the annulment of Commission prohibition decisions in merger control, however, put this danger into perspective. Apart from the above-mentioned developments, it is equally worth highlighting the proliferation of litigation running in parallel to annulment actions. Such litigation calls for, first and foremost, a re-examination and revision of the fines imposed by the Commission under Articles 81 and 82 EC. Subsequent to successful annulment actions, such litigation also encompasses actions for compensation of the losses incurred by the firm(s) subjected to unlawful Commission decisions. The recent case Holcim v. Commission or the request lodged by Mytravel after the Airtours judgment illustrate the development of such litigation in the field of competition law. Against this background, the developments that follow intend to provide a critical analysis of annulment actions against Commission decisions in the field of competition law in the aftermath of the modernisation process. This study is made up of seven parts. Part II identifies those acts that can be the subject of an annulment action within the meaning of Article 230 EC. Part III reviews and analyses the rules laying down who is entitled to initiate an annulment action. Part IV recalls the modalities for an annulment action. Part V evokes the parallel actions (revision of fines) and subsequent actions for indemnity following an annulment action. Part VI evaluates the effectiveness of the Community annulment action procedure in the light of the principles laid down by the CFI and ECJ as regards judicial review. Part VII provides a brief conclusion

Competition Policy and the Euromed Partnership

This paper seeks to provide a critical assessment of the efforts made by the EC to stimulate the development of competition laws in the Mediterranean countries with which it is engaged in partnership agreements. It reviews the content of the competition provisions of the association agreements, as well as their effectiveness. In then examines the regular calls for convergence on the EC competition law model to which Mediterranean countries are object. There is indeed room for debate regarding the opportunity, as well as the nature of such convergence. The paper concludes that a deep convergence approach, whereby the non-candidate Partner countries would transpose EC competition rules in their domestic legal order, would provide many benefits for both the EC and these countries

Price Discrimination Under Ec Competition Law: Another Antitrust Theory in Search of Limiting Principles

Price discrimination is one of the most complex areas of EC competition law. There are several reasons for this. First, the concept of price discrimination covers many different practices (discounts and rebates, tying, selective price cuts, discriminatory input prices set by vertically-integrated operators, etc.) whose objectives and effects on competition significantly differ. From the point of view of competition law analysis, it is thus not easy to classify these practices under a coherent analytical framework. Second, there is a consensus among economists that the welfare effects of the (various categories of) price discrimination are ambiguous. It is hard to say a priori whether a given form of price discrimination increases or decreases welfare. The response to this question may indeed depend on which type of welfare standard (total or consumer) is actually pursued. Moreover, even if one agrees on a given standard, the welfare effects of discriminatory prices generally depend on factual issues, such as whether it increases or decreases total output. Third, the exact scope of Article 82(c), the only Treaty provision dealing with discrimination, is not entirely clear. While the European Commission (hereafter, the Commission) and the Community courts have applied Article 82(c) to many different practices, there are good reasons to believe that this provision should be applied to a limited set of circumstances, most forms of discrimination being adequately covered by Article 82(b) or other provisions of the Treaty. Against this background, the main objective of this paper is to throw some light on the compatibility of price discrimination with EC competition law. In order to do so, this paper does not seek to propose a grand unifying theory that would provide a single test offering a way to distinguish between practices compatible and incompatible with the EC Treaty. Instead, we offer an analytical framework which distinguishes between different categories of price discrimination depending on their effects on competition. Different tests may thus be needed to assess the compatibility of the practices belonging to these categories with EC competition law. Another objective of the paper is to show that Article 82(c) should only be applied to the limited circumstances where a non-vertically integrated dominant firm price discriminates between customers with the effect of placing one or several of them at a competitive disadvantage vis-a-vis other customers (secondary line price discrimination). In contrast, Article 82(c) should not be applied to pricing measures designed to harm the dominant firm's competitors (first line price discrimination) or to fragment the single market across national lines. As will be seen, relying on Article 82(c) to condemn such practices goes against the letter and the spirit of this provision and may also apply a wrong test to such practices. It is also not necessary since other Treaty provisions can be used to achieve this objective

The Development of Agencies at EU and National Levels: Conceptual Analysis and Proposals for Reform

In this paper we analyse institutional issues of common interest to the National Regulatory Authorities (NRAs) and the European Agencies (EAs) created under the impulsion of EC law. Both sets of bodies are examined through the lenses of three institutional regulatory parameters, i.e. (i) the jurisdictional level at which agencies should be placed (EU vs. national), (ii) the degree of homogeneity/heterogeneity that is desirable among agencies, and (iii) the state of compliance with principles of good governance. On the basis of this analysis, we argue that there is some scope for significant reforms. While the creation of NRAs and EAs can be seen as a positive development of EC law, the methods of functioning of these agencies and the way they are organised could largely be improved, in particular with regards to principles of good governance.European Agencies; diversity/homogeneity; Europeanization; governance; networks; regulation; regulatory competition; European law; subsidiarity; transparency; Single Market; competition policy; energy policy; railway policy; telecommunication policy; treaty reform; accountability; decentralisation; institutions; European Food Agency; European Agency for the Evaluation of Medicinal Products; European Agency for the Evaluation of Medicinal Products; European Commission