Arbitrability of EU Competition Law-Based Claims: Where Do We Stand after the CDC Hydrogen Peroxide Case?

In this paper, we discuss the extent to which EU competition rules are arbitrable. There is a wide consensus that Articles 101 and 102 TFEU are fully arbitrable and we share that opinion. More challenging questions may, however, arise when the dispute subject to arbitration raises issues under the other competition provisions of the TFEU, i.e., Articles 106 to 108, as well as in secondary EU competition legislation (e.g., the EU Merger Control Regulation). Moreover, in the recent CDC Case, the question has arisen as to whether arbitration is a suitable method to settle claims for damages arising from breaches of competition law made by one of the parties to a contract containing an arbitration clause. We discuss AG Jääskinen’s controversial Opinion, the judgment of the CJEU, and their possible implications on the arbitrability of damages actions based on breaches of EU competition rules

The Judicial Reception of Competition Soft Law in France and Germany

Ten years ago, EU Competition law transitioned from a system of centralised enforcement managed by the European Commission to a decentralised domain regulated by multiple institutional actors situated at both national and supranational level. With this development, the need for usage of non-conventional regulatory instruments grew. This is where soft law presented itself as an opportunity to fill the substantive core of the regulatory domain. This development does not only reflect the impossibility for creating hard and fast legal rules between multiple actors; in the EU Competition law domain – the field which regulates business behaviour within the EU – there is also inherent uncertainty about how markets will react to regulation in the form of hard legal rules. Thus, soft law in its non-binding and flexible nature offered a convenient solution; however, it also presented the enforcement regime with a significant obstacle. Since soft law is non-legally binding, the provisions of those instruments cannot be relied upon in courts of law. Thus, when a competition law dispute reaches a national court of an EU Member State, the odds are high that parties would experience difficulties in asserting their rights since their claims are highly likely to be based on, or to involve soft law instruments. This paper therefore takes an empirical look at the judicial handling of competition claims involving competition soft law in Germany and France, and tracks the way in which national courts engage with such claims