Advances in Competition Policy Enforcement in the EU and North America
Edited by Abel M. Mateus and Teresa Moreira
Chapter 7: Improving Judicial Control of Administrative Decisions in Competition Enforcement
Frédéric Jenny1 INTRODUCTION 1. There is no complete codex of competition law, and jurisprudence is being built everyday on a case by case approach. Is this approach compatible with common law and roman law based systems? The civil law tradition, repository of the Napoleonic codes, prevents the intrusion of the judiciary into the legislative area, so that it avoids interpreting the law and restricts itself to applying the law. This is in large contrast with the common law tradition established by the Sherman Act, a statute setting forth very general propositions that judges would implement and develop on a case by case basis. However, most of the EU countries have followed a third route. Administrative agencies develop the fundamental rule: judges intervene at an appellate stage. This is the role of the Court of First Instance (CFI) in the Community which is a court of judicial review. Thus, the CFI usually leaves complex economic arguments to the discretion of the Commission, reflecting its choice of economic policy. Competition law is unique because it grafts economic concepts onto law: to judge a given behaviour as anticompetitive the Court has to use an economic model. Relevant facts can be established only through an understanding of economic concepts, and to put them together to establish if there is a violation requires economic reasoning. This is particularly acute in the application of the rule of reason or balancing costs and benefits in an exemption case. In all cases, for both trial and...
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