Drop-off in competition litigation could slow evolution of case law, van der Woude says

6 April 2017 12:04pm

31 March 2017. By Lewis Crofts.

A decrease in competition-law litigation before EU judges may mean that the development of case law stagnates, the vice-president of the EU's lower-tier court said.

Changes to the European Commission's handling of cases have led to a drop-off in subsequent appeals before the Luxembourg-based court at a time when it has increased the number of judges available.

"My concern with having less work… is the fact that certain areas of law have completely disappeared from the judicial radar screen," van der Woude said.

"If you have less cases, the likelihood is you will stick to existing caselaw," van der Woude told a conference* in Washington, DC. "Change will not happen."

In 2016, there were 974 cases at the court, of whih fewer than 10 percent concerned competition law work, he said. This is a drastic drop from 50 percent, the historic level when the court started in the 1970s.

Van der Woude suggested that the "center of gravity" of competition work had moved to the EU countries themselves and away from Brussels as national enforcers run more cases.

Equally, EU investigators were concluding more cases through voluntary agreements which has led to a drop in legal challenges.

The judge said there may be "systemic risk" as a body of decisions emerges that appears exempt from judicial review.

The EU courts had drawn criticism for taking too long to review appeals — particularly against cartel fines — and caseload had been mounting. So, in 2015, the legislature pushed through a contentious overhaul, agreeing to double the number of judges, from 28 to 56, at the lower-tier General Court by 2020.

Van der Woude said the changes are already leading to more efficient processing of cases.

The average duration of cartel cases dealt with by a judgment fell from 50.5 months in 2011 to 38 months last year," he said. "I hope we will be able to get that down even further."

While appeals against antitrust fines may be dropping off, van der Woude noted an increase in challenges to merger decisions, as well as companies raising procedural grievances.

Before the reform, the court had attracted lawsuits from companies that argued they were suffering damage because of delays in handling their appeals against EU cartel fines. The total exposure for the court amounted to around 26 million euros.

Groupe Gascogne, a French company, filed the first such lawsuit against the court for delays in handling its appeal. Earlier this year, judges awarded the company 57,000 euros in damages ($61,064), a sum that was only a fraction of the 3.9 million euros it had requested.

Van der Woude said it was still an "open question" what the judges' ruling in Gascogne's cartel appeal meant for delays in other kinds of cases, such as against merger decisions or EU-level sanctions.

"When it comes to sanctions of a criminal type, that is where this principle of reasonable delay is important," he said, adding it was "perhaps less so" for other kinds of cases.

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