Soft Law in EU Competition Law and its Judicial Reception in Member States — A Theoretical Perspective

Posted by Social Science Research Network

Soft Law in EU Competition Law and its Judicial Reception in Member States — A Theoretical Perspective – Zlatina Rumenova Georgieva (Tilburg Law and Economics Center)

ABSTRACT: The EU competition enforcement regime underwent quite some changes in both its substantive and procedural workings when Regulation 1/2003 – the ‘Modernization’ Regulation – entered into force on May 1st 2004. The procedural decentralization and the change in the logic of substantive enforcement the Regulation introduced created challenges for the new system, especially in light of the general principle of legal certainty. Mindful of possible (and plausible) enforcement inconsistencies, the European Commission maintained that certainty is going to be well served by the already existing and well-developed competition case law of the CJEU, the Commission’s own decisional practice, and, last but not least, its soft law guidance in the forms of guidelines, notices, communications, etc.

It is these latter instruments and their value for steering judicial discourse in EU Member States that the current paper is interested in. Since the year 2004, the significance of Commission-issued soft law has increased because the latter instruments provide an in-depth account and guidance of, respectively, the enforcement practice and priorities of the Commission. These are important functions to perform in a highly uncertain and fluid policy enforcement setting, where the multiplicity of decision-makers and new substantive enforcement goals make it increasingly difficult for businesses to predict what constitutes anti-competitive behavior and what not. In this sense, and in view of legal certainty, it would be desirable that not only businesses and national competition enforcement agencies (NCAs), but also the national judiciary took heed of the said soft instruments. The question asked in this paper, thus, is whether and if so – how – do national courts take Commission-issued competition soft law into account in their judgments? Since there are indications that the provisions of competition soft law are being disregarded at the supranational level (take the recent Expedia judgment of the CJEU), it could be that national courts exhibit a similar approach. Such a development, however, is deemed undesirable from the theoretical standpoint of legal certainty, since instruments which contain and elaborate on the substantive core of the re-designed regime, and which are explicitly designed to ensure consistency in a moment of fluidity in the law, cannot simply be ignored, especially by the judiciary. As ultimate instances of normative ordering, courts have the responsibility to maintain legal certainty, and to do so, in the context of EU competition law, they should engage with the pertinent soft instruments. To this end, the current paper proposes a theoretical framework for national judicial engagement with competition soft law instruments.