Verfahrensrecht für ein ökonomisiertes Kartellrecht: Der Beurteilungsspielraum der Kommission (Procedural Rules for a ‘More Economic’ Competition Law: The Commission’s Margin of Discretion)

Festschrift zum 70: Geburtstag von Wernhard Möschel, 2011

16 Pages Posted: 30 Jul 2011

Date Written: July 29, 2011

Abstract

For over a decade, the substantive rules of European competition law have been subject to a reinterpretation commonly referred to as the ‘more economic approach’. This article considers one of the procedural consequences resulting from this fundamental change: Since the EU courts traditionally profess to exercise only limited judicial control over the Commission’s appreciation of ‘complex economic matters’, an increasing reliance on economic analysis affords the Commission with a growing margin of discretion. Such a restricted judicial review of complex economic matters is particularly problematic because economic analysis is prone to political bias and rent-seeking. On the other hand, it reduces the complexity of judicial control and thereby contributes to procedural economy.

The article examines whether the courts’ current practice regarding the margin of discretion is still suitable for a ‘more economic’ competition law. It first gives a short overview of the growing influence of economics on the application of competition law, its procedural implications and the state of debate on the Commission’s margin of discretion. Subsequently, it introduces three distinct categories of economic analysis that can be distilled from the Commission’s decisional practice. Finally, the article highlights their consequences for the concept of the margin of discretion.

The author finds that the ‘more economic approach’ has enhanced the influence of both normative and descriptive economics on EU competition law. While the former brings efficiency and consumer welfare considerations to the fore of competition policy, the latter is increasingly employed when assessing economic effects in individual cases, for example through model simulations and quantitative studies. The increased use of descriptive economics is of particular relevance to procedural law. Procedural rules can create the necessary preconditions for the consideration of economic expertise in competition proceedings, simplify certain types of economic analysis or preclude them altogether, for example by affording the competition authority with a margin of discretion outside the scope of judicial review.

The European courts have repeatedly stated that the Commission enjoys broad discretion when assessing complex economic matters. A closer examination of the case law, however, reveals that the courts have never rejected a ground of appeal with reference to the Commission’s margin of discretion. Rather, the depth of judicial control depends on the submission of economic arguments by the parties. Overall, the Community courts have not yet developed a systematic concept of the margin of discretion.

Against this background, the role of economic expertise in the Commission’s decisional practice can be classified into three broad categories. First, the Commission employs economic knowledge to develop abstract rules when construing EU competition law (conceptualization). Second, it applies qualitative and quantitative methods to assess competitive effects in individual cases (implementation). Third, economic knowledge may be necessary to collect and compute the data required for these methods (data collection).

These three categories vary in the amount of leeway left to the decision maker: Conceptualization is inherently normative, while data collection is confined to the ascertainment of facts. In turn, the scope of judicial review should differ accordingly. The Commission should not be afforded a margin of discretion when it devises abstract rules based on economic concepts. However, a margin of discretion may be suitable in cases where economic expertise was employed to answer questions of degree and scale.

Note: Downloadable document is in German.

Keywords: Antitrust, Competition, More Economic Approach, Discretion, Competition Economics, Competition Procedure

JEL Classification: K21

Suggested Citation

Pohlmann, Petra, Verfahrensrecht für ein ökonomisiertes Kartellrecht: Der Beurteilungsspielraum der Kommission (Procedural Rules for a ‘More Economic’ Competition Law: The Commission’s Margin of Discretion) (July 29, 2011). Festschrift zum 70: Geburtstag von Wernhard Möschel, 2011. Available at SSRN: https://ssrn.com/abstract=1898525

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