Soft Law and the Private Enforcement of the EU Competition Rules
International Conference on the Private Enforcement of Competition Law, University of Valladolid School of Law, Spain, October 14-15, 2010
17 Pages Posted: 16 Jul 2010 Last revised: 28 Jul 2010
Date Written: July 14, 2010
The use of soft law instruments is pervasive in the field of EU competition policy. This poses significant legal challenges derived from the progressive ‘hardening’ of these regulatory tools by the European Courts as a result of the application of the general principles of EU law. The preponderance of soft law instruments might even have expanded after the modernisation and decentralisation of the enforcement of EU competition rules, giving rise to yet more complicated legal puzzles. One of them is the impact that soft law can have on undertakings as a result of its enforcement (or lack of) by national courts of the Member States in the framework of private actions. This paper stresses that soft law instruments have asymmetrical legal effects when they are enforced by the Commission and by national courts. Hence, they create a significant risk for the consistency in the interpretation and enforcement of EU competition law that seems to claim for a revision of current rules before further promoting private actions.
Keywords: soft law, private enforcement, competition law, decentralization, judicial independence, administrative guidance, legal certainty
JEL Classification: K21, K41, K42
Suggested Citation: Suggested Citation