The Judicial Reception of Competition Soft Law in France and Germany

Abstract

Ten years ago, EU Competition law transitioned from a system of centralized enforcement managed by the European Commission to a decentralized domain regulated by multiple institutional actors situated at both national and supranational level. With this development, the need for usage of non-conventional regulatory instruments grew. This is where soft law presented itself as an opportunity to fill the substantive core of the regulatory domain. This development does not only reflect the impossibility for creating hard and fast legal rules between multiple actors; in the EU Competition law domain – the field which regulates business behavior within the EU – there is also inherent uncertainty about how markets will react to regulation in the form of hard legal rules. Thus, soft law in its non-binding and flexible nature offered a convenient solution; however, it also presented the enforcement regime with a significant obstacle. Since soft law is non-legally binding, the provisions of those instruments cannot be relied upon in courts of law. Thus, when a competition law dispute reaches a national court of an EU Member State, the odds are high that parties would experience difficulties in asserting their rights since their claims are highly likely to be based on, or to involve soft law instruments. This paper therefore takes an empirical look at the judicial handling of competition claims involving competition soft law in Germany and France, and tracks the way in which national courts engage with such claims.

Keywords: soft law, EU competition law, legal effect, practical effects, courts, judiciary, France, Germany

JEL Classification: L40, K21