Relying on EU Soft Law Before National Competition Authorities: Hope for the Best, Expect the Worst

Oana Stefan, Jul 15, 2013

Instruments deprived of legally binding force according to Article 288 TFEU—notices, guidelines, communications, etc.—have been issued in EU competition law since the 1960s. Bearing a vast variety of names and coming in different forms, all these instruments can be gathered under the umbrella notion of “soft law.” As experienced in international law contexts, the legal or practical effects that soft law can produce in the absence of legally binding force remain rather unclear, which makes the enforceability of such instruments problematic.

This is particularly worrying given the current system of EU competition law enforcement. Following Regulation 1/2003, the enforcement of EU competition law occurs in a multi-level setting, with cases being dealt with at the national or at the European level by authorities organized within the European Competition Network (“ECN”). In this context, national competition authorities, national courts, and the European Commission are all called to apply EU Treaty provisions and EU secondary legislation to competition cases. However, while the European Commission is required to observe EU notices and guidelines in the cases it deals with, no such obligation exists for national competition authorities.

This might result in inequality of treatment alongside the ECN, as individuals involved in cases decided at the central level may expect guidelines and notices to apply, but are not entitled to expect the same should their case be treated nationally. In the recent Expedia case the Court of Justice of the European Union (“CJEU”) failed to address this inequality, while favoring a large margin of discretion and autonomy for national competition authorities in the enforcement of EU law.

The case exposes the tension between, on the one hand, the need to accommodate diversity in the enforcement of EU competition rules by respecting the autonomy of national competition authorities operating within the ECN and, on the other hand, the imperative to preserve legal certainty for individuals, as well as effectiveness and consistency in the application of EU law.

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