The Judicial Reception of Competition Soft Law in the Netherlands and the UK

Abstract

The goal of the current work is to delineate national judicial responses to Commission-issued competition soft law within two EU jurisdictions – the UK and the Netherlands. For this purpose, a comparative methodology is adopted and – in terms of theory – several hypotheses of possible judicial attitudes coined in a previous work are brought together under the term national ‘judicial recognition’ of supranational competition soft law. The term ‘recognition’ was chosen, because it has a positive connotation, which signals the author’s discord with the predominant doctrinal scholarly view that soft law should be seen as a danger to democratic rule of law principles and thus become (solely) an object of judicial resistance. It is argued that, to the contrary, competition soft law could and should become ‘positively recognized’ by courts of law since that would enhance enforcement consistency and the concomitant legal certainty and uniform application – the normative starting points for this study. The empirical picture that transpires, however, shows a landscape different from the desired one.

Keywords: soft law, EU competition law, antitrust, guideline, notice, communication, national court, national judiciary, case law

JEL Classification: L40, K21