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Jenny, Frédéric --- "Improving Judicial Control of Administrative Decisions in Competition Enforcement" [2010] ELECD 355; in Mateus, M. Abel; Moreira, Teresa (eds), "Competition Law and Economics" (Edward Elgar Publishing, 2010)

Book Title: Competition Law and Economics

Editor(s): Mateus, M. Abel; Moreira, Teresa

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848449992

Section: Chapter 7

Section Title: Improving Judicial Control of Administrative Decisions in Competition Enforcement

Author(s): Jenny, Frédéric

Number of pages: 14

Extract:

7. Improving judicial control of
administrative decisions in
competition enforcement
Frédéric Jenny1

1. INTRODUCTION

There is no complete codex of competition law, and jurisprudence is being
built everyday on a case by case approach. Is this approach compatible
with common law and roman law based systems? The civil law tradition,
repository of the Napoleonic codes, prevents the intrusion of the judiciary
into the legislative area, so that it avoids interpreting the law and restricts
itself to applying the law. This is in large contrast with the common law
tradition established by the Sherman Act, a statute setting forth very
general propositions that judges would implement and develop on a case
by case basis. However, most of the EU countries have followed a third
route. Administrative agencies develop the fundamental rule: judges inter-
vene at an appellate stage. This is the role of the Court of First Instance
(CFI) in the Community which is a court of judicial review. Thus, the
CFI usually leaves complex economic arguments to the discretion of the
Commission, reflecting its choice of economic policy. Competition law
is unique because it grafts economic concepts onto law: to judge a given
behaviour as anticompetitive the Court has to use an economic model.
Relevant facts can be established only through an understanding of eco-
nomic concepts, and to put them together to establish if there is a violation
requires economic reasoning. This is particularly acute in the application
of the rule of reason or balancing costs and ...