Comparative report: National judicial review of competition law enforcement in the EU and the UK

Abstract

National courts play a special role in the enforcement of EU competition law. Under the EU enforcement framework instituted by Regulation 1/2003, they constitute the main forum for the review of enforcement decisions taken by national competition authorities (NCAs). This is not a simple task, as the application of the competition rules often calls for a complex economic and legal assessment.
At the same time, beyond the trite assertion that judicial review seeks to protect the rule of law, European competition law and legal scholarship have offered scant guidance on the functions of judicial review. The effectiveness of judicial review within the EU legal order, therefore, is often taken for granted, and very little is known about its operation and impact in practice.
This project is the first to undertake a comprehensive, comparative empirical study, mapping out the judicial review of competition law public enforcement in the European Union (EU) and the United Kingdom (UK) to provide a greater understanding of the practical operation of the judicial review role. This comparative report seeks to provide a comparative analysis of the operation of national judicial review of competition law enforcement across the EU and the UK. It provides an analysis of: (i) the structures of the national enforcement systems, (ii) the total number of judgments rendered in each jurisdiction, the ratio of appeals, success rates and the outcome of judicial review; (iii) the types of appellants; (iv) the competition rules subject to review; (v) the grounds of review; (vi) use of preliminary references, (vii) the appeals involving leniency and/or settlements; and (viii) the role of third parties. Based on these findings, the chapter argues that the current system of judicial review of EU and national competition law enforcement by national courts does not fully match the integration aims of Regulation 1/2003. The evidence suggests that the existing EU and national rules on judicial review of the NCAs’ enforcement do not ensure an effective, consistent, and uniform application of the competition rules by national courts in all Member States.

Keywords: EU competition law, antitrust, judicial review, empirical legal research, decentralised enforcement, EU law