The Principle of Effectiveness, Competition Law Remedies and the Limits of Adjudication

Abstract

The principle of effectiveness is closely related to the development of the emerging EU law on remedies. Its instrumental use has enabled the EU courts to restrict the principle of national procedural autonomy, when this was convenient in order to ensure the accomplishment of the aims set by EU competition law enforcement, and to establish EU-granted remedies, the most notable one being the right to claim competition law damages. The principle of effectiveness may also influence the design of injunctive relief by the European Commission, which should be adequate to ensure not only that the results of the violation of competition law are reversed, but also that there is no risk that the aims of competition law will be jeopardized in the future (general deterrence, specific deterrence and prophylactic/preventive aims). Left unbound, the principle of effectiveness may offer the opportunity to competition authorities to expand their remedial discretion and to re-design market processes and outcomes in accordance with the dominant interpretation of their statutory objectives. The point made in this paper is that, whatever one thinks of the appropriateness of an expansive view of remedial discretion, which is not, in our view, supported by the restrictive interpretation of the principle of effectiveness in EU law, remedial discretion is naturally limited by the specific function exercised by the remedial process chosen or, more contentiously, imposed by the nature of the dispute. Drawing on Fuller’s account of the existence of various forms of social ordering, each of them emerging in specific circumstances/context and having its own principles and limitations, the paper offers some reflections on the possible limits that the essence of each ideal type of social ordering sets to the expansive interpretative potential of the principle of remedial effectiveness. The polycentric nature of competition law disputes calls for flexibility in the choice of the adequate form of social ordering aiming to achieve the objectives set by the legislator. This breaks with the classic view of the adjudication model and hints to the prevalence, in a significant number of cases with a pronounced polycentric element, of what has been called the “structural adjudication” model, still distinct from the model of regulatory governance. The paper explores the nature of commitment decisions as an illustration of the difficulties of classification, without a proper consideration of the functions and respective limits of each form of social ordering. It does this by examining some recent cases, such as the ongoing Google saga at the European Commission or the Skyscanner judgment of the UK Competition Appeal Tribunal (CAT).

Keywords: effectiveness, remedies, competition law, commitments, adjudication, regulation, participation, procedure

JEL Classification: K21, K40, K41, L40