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Antitrust scholars have always wondered what makes competition law systems succeed and what makes them fail, or falter. Particularly interesting, and somewhat rare, are studies where insights are gained empirically, usually from interviews with key stakeholders. Maciej Bernatt’s book, Populism and Antitrust: The Illiberal Influence of Populist Government on the Competition Law System, is one of the most recent contributions to the field of institutional antitrust, building on such empirical insights. One of the most prominent scholars of competition law in Central and Eastern Europe (CEE), Bernatt is Associate Professor at the University of Warsaw, and Director of the Centre for Antitrust and Regulatory Studies (CARS). He is also Editor-in-Chief of the Yearbook of Antitrust and Regulatory Studies (YARS), the leading CEE academic journal focused on competition law issues. In the book, Bernatt uses empirical findings from Poland and Hungary to propose a new theoretical framework aimed at better measuring and understanding the illiberal influence of populism on competition law systems, addressing both challenges at the competition authority level and at the level of the judiciary. The book was published in 2022 by Cambridge University Press in their series on global competition law and economics policy, edited by Ioannis Lianos (University College London), Thomas Cheng (The University of Hong Kong), Simon Roberts (University of Johannesburg), Maarten Pieter Schinkel (Universiteit van Amsterdam), and Maurice Stucke (University of Tennessee). The book, totalling some 270 pages, is structured in four parts. In the first, titled ‘Background: populism, democracy, economy’, Bernatt sets the scene by discussing the broader context and showing the implications populism has on democracy and the economy. The heart of the book is the second part, titled ‘Populist influence on competition law systems’, where he examines the influence of populism on competition law systems both by systematically discussing his empirical findings and by laying out his original theoretical framework. The third part, ‘A regional system’, is crucial for Bernatt’s analysis of the actual (and potential) EU response to populist-related challenges to competition law development in Hungary and Poland. The fourth part gives the final diagnosis and prospects.

This thesis examines the current design of the system of case resolution mechanisms used by the European Commission (the Commission) where an infringement of Articles 101 and 102 TFEU is suspected and advances some proposals regarding this design. Infringements of Articles 101 and 102 TFEU cause considerable damage to the EU economy and ultimately, to consumers. Despite intensified enforcement of Articles 101 and 102 TFEU and ever-growing fines imposed for such infringements, the Commission continues to discover new infringements, which indicates a widespread non-compliance with EU competition rules. This raises the question of whether the enforcement currently carried out by the Commission is suitable for achieving compliance with Articles 101 and 102 TFEU. The thesis is divided into four main parts: First, the objectives pursued by the system of case resolution mechanisms used by the Commission are identified. Second, taking stock, the case resolution mechanisms currently employed are assessed in the light of these objectives. Third, the question of whether and how the different case resolution mechanisms could be viewed through the lens of regulatory enforcement is considered. Fourth, an assessment is made as to whether a different approach to case resolution could be employed based on a prescriptive theory of regulatory enforcement, responsive regulation. The research conducted shows that the main objectives pursued by the system of case resolution mechanisms used by the Commission are: to bring infringements to an end, to punish and deter infringers, to prevent infringements and to clarify competition rules. These objectives shall be achieved in an effective and efficient manner. The case resolution mechanisms that are assessed are Article 7 decisions, Article 9 decisions and cartel settlements. These mechanisms pursue varying sets of objectives. Their fulfilment depends, on the one hand, on the legal and procedural modalities of each case resolution mechanism and, on the other, on the types of cases allocated to that case resolution mechanism. The assessment returns varied results showing that some objectives are difficult for the Commission to achieve. Moreover, the choices made by the Commission when allocating case resolution mechanisms to cases are sometimes counterproductive with regard to the fulfilment of the relevant objectives. Taking into account the different characteristics exhibited by the case resolution mechanisms, an attempt is made to categorise these mechanisms as pursuing different regulatory enforcement styles. The conclusion is that this is not fully possible, exposing the multi-faceted nature of the case resolution mechanisms currently at the Commission’s disposal. Finally, a potential design of a case resolution system based on the theory of responsive regulation is advanced. This design is specifically aimed at remedying some of the deficiencies identified in the current approach to resolving potential infringements of Articles 101 and 102 TFEU. Instead of choosing a case resolution mechanism on a case-by-case basis, a prescriptive system based on infringement history and the cooperation offered by the undertaking would determine what case resolution mechanism to employ. The aim of such case resolution mechanisms would be to reduce the focus on fines. Instead, focus would be placed on cooperation as a means of bringing infringements to an end and preventing infringements by way of corporate compliance programmes.

The goal of the current work is to delineate national judicial responses to Commission-issued competition soft law within two EU jurisdictions – the UK and the Netherlands. For this purpose, a comparative methodology is adopted and – in terms of theory – several hypotheses of possible judicial attitudes coined in a previous work are brought together under the term national ‘judicial recognition’ of supranational competition soft law. The term ‘recognition’ was chosen, because it has a positive connotation, which signals the author’s discord with the predominant doctrinal scholarly view that soft law should be seen as a danger to democratic rule of law principles and thus become (solely) an object of judicial resistance. It is argued that, to the contrary, competition soft law could and should become ‘positively recognized’ by courts of law since that would enhance enforcement consistency and the concomitant legal certainty and uniform application – the normative starting points for this study. The empirical picture that transpires, however, shows a landscape different from the desired one.

This work draws from accounts on the nature and legal effects of soft law instruments in EU and international law with the ultimate aim to construct a theoretical framework for recognition of EU competition soft law—guidelines, communications, notices, and the like—in the judicial discourse of national courts of the European Union. “Recognition” is used to encompass instances in which the national judiciary either explicitly interprets—that is, agrees or disagrees with—the content of competition soft instruments, or treats their substance in a roundabout, implicit way—without explicit reference to soft law in the judgment proper. This second option is called “the persuaded judiciary scenario.” Importantly, a foundational assumption of the current work is that courts do not transform soft law into hard law when subjecting the former to judicial interpretation/recognition. This Article also takes issue with the fact that CJEU preliminary rulings on competition soft law disputes originating in Member States have thus far exhibited a rather resistant attitude to soft law. The supranational judiciary has, to a large extent, refused to interpret soft law because of its lack of binding force. The possibility that national courts adopt a similar approach in the currently decentralized competition enforcement system is thus not discounted, but is seen as undesirable for two important reasons.

Whether arbitral tribunals should be allowed to adjudicate disputes on the basis of legal grounds different from those submitted by the parties is a question that is subject to considerable debate in the international arbitration community. On the one hand, arbitration is a creature of contract and arbitral tribunals should be careful not to exceed the mandate that has been extended to them by the parties. On the other hand, there may be circumstances where the ignorance of certain legal regimes may be fatal to the validity and enforceability of the award, and where the tribunal may thus well be advised to raise the applicability of such regimes even if the parties failed to do so. In order to illustrate the type of circumstances in which arbitral tribunals may be well advised to raise legal grounds on an ex officio basis in order to ensure the validity and enforceability of the award, I refer to contractual disputes where the agreement under scrutiny, which one of the parties is seeking to enforce, may breach EU competition law, which according to the Eco-Swiss judgment of the CJEU belongs to public policy. This paper argues that whether arbitral tribunals should raise EU competition rules on their own motion largely depends on the circumstances of each case and arbitral tribunals should be guided by pragmatism rather than theoretical considerations.

Whether arbitral tribunals should be allowed to adjudicate disputes on the basis of legal grounds different from those submitted by the parties is a question that is subject to considerable debate in the international arbitration community. On the one hand, arbitration is a creature of contract and arbitral tribunals should be careful not to exceed the mandate that has been extended to them by the parties. On the other hand, there may be circumstances where the ignorance of certain legal regimes may be fatal to the validity and enforceability of the award, and where the tribunal may thus well be advised to raise the applicability of such regimes even if the parties failed to do so. In order to illustrate the type of circumstances in which arbitral tribunals may be well advised to raise legal grounds on an ex officio basis in order to ensure the validity and enforceability of the award, I refer to contractual disputes where the agreement under scrutiny, which one of the parties is seeking to enforce, may breach EU competition law, which according to the Eco-Swiss judgment of the CJEU belongs to public policy. This paper argues that whether arbitral tribunals should raise EU competition rules on their own motion largely depends on the circumstances of each case and arbitral tribunals should be guided by pragmatism rather than theoretical considerations.

Whether arbitral tribunals should be allowed to adjudicate disputes on the basis of legal grounds different from those submitted by the parties is a question that is subject to considerable debate in the international arbitration community. On the one hand, arbitration is a creature of contract and arbitral tribunals should be careful not to exceed the mandate that has been extended to them by the parties. On the other hand, there may be circumstances where the ignorance of certain legal regimes may be fatal to the validity and enforceability of the award, and where the tribunal may thus well be advised to raise the applicability of such regimes even if the parties failed to do so. In order to illustrate the type of circumstances in which arbitral tribunals may be well advised to raise legal grounds on an ex officio basis in order to ensure the validity and enforceability of the award, I refer to contractual disputes where the agreement under scrutiny, which one of the parties is seeking to enforce, may breach EU competition law, which according to the Eco-Swiss judgment of the CJEU belongs to public policy. This paper argues that whether arbitral tribunals should raise EU competition rules on their own motion largely depends on the circumstances of each case and arbitral tribunals should be guided by pragmatism rather than theoretical considerations.

Whether arbitral tribunals should be allowed to adjudicate disputes on the basis of legal grounds different from those submitted by the parties is a question that is subject to considerable debate in the international arbitration community. On the one hand, arbitration is a creature of contract and arbitral tribunals should be careful not to exceed the mandate that has been extended to them by the parties. On the other hand, there may be circumstances where the ignorance of certain legal regimes may be fatal to the validity and enforceability of the award, and where the tribunal may thus well be advised to raise the applicability of such regimes even if the parties failed to do so. In order to illustrate the type of circumstances in which arbitral tribunals may be well advised to raise legal grounds on an ex officio basis in order to ensure the validity and enforceability of the award, I refer to contractual disputes where the agreement under scrutiny, which one of the parties is seeking to enforce, may breach EU competition law, which according to the Eco-Swiss judgment of the CJEU belongs to public policy. This paper argues that whether arbitral tribunals should raise EU competition rules on their own motion largely depends on the circumstances of each case and arbitral tribunals should be guided by pragmatism rather than theoretical considerations.

Whether arbitral tribunals should be allowed to adjudicate disputes on the basis of legal grounds different from those submitted by the parties is a question that is subject to considerable debate in the international arbitration community. On the one hand, arbitration is a creature of contract and arbitral tribunals should be careful not to exceed the mandate that has been extended to them by the parties. On the other hand, there may be circumstances where the ignorance of certain legal regimes may be fatal to the validity and enforceability of the award, and where the tribunal may thus well be advised to raise the applicability of such regimes even if the parties failed to do so. In order to illustrate the type of circumstances in which arbitral tribunals may be well advised to raise legal grounds on an ex officio basis in order to ensure the validity and enforceability of the award, I refer to contractual disputes where the agreement under scrutiny, which one of the parties is seeking to enforce, may breach EU competition law, which according to the Eco-Swiss judgment of the CJEU belongs to public policy. This paper argues that whether arbitral tribunals should raise EU competition rules on their own motion largely depends on the circumstances of each case and arbitral tribunals should be guided by pragmatism rather than theoretical considerations.

Whether arbitral tribunals should be allowed to adjudicate disputes on the basis of legal grounds different from those submitted by the parties is a question that is subject to considerable debate in the international arbitration community. On the one hand, arbitration is a creature of contract and arbitral tribunals should be careful not to exceed the mandate that has been extended to them by the parties. On the other hand, there may be circumstances where the ignorance of certain legal regimes may be fatal to the validity and enforceability of the award, and where the tribunal may thus well be advised to raise the applicability of such regimes even if the parties failed to do so. In order to illustrate the type of circumstances in which arbitral tribunals may be well advised to raise legal grounds on an ex officio basis in order to ensure the validity and enforceability of the award, I refer to contractual disputes where the agreement under scrutiny, which one of the parties is seeking to enforce, may breach EU competition law, which according to the Eco-Swiss judgment of the CJEU belongs to public policy. This paper argues that whether arbitral tribunals should raise EU competition rules on their own motion largely depends on the circumstances of each case and arbitral tribunals should be guided by pragmatism rather than theoretical considerations.

Having recently registered the 500th dispute at its docket, the WTO dispute settlement system is as prolific and relevant as ever. By almost any measure, it is a great success; it has contributed to bolstering the WTO’s legitimacy, increased the judicialisation of WTO Members’ trade relations, and promoted the scientification of public international law. With regard to the latter phenomenon, part of the empirical turn in WTO law is manifested as increasing reliance on economic theory and method, and econometric evidence in dispute settlement. Positive as that development may be due to the promise it holds for diminished judicial discretion, it increases complexity and poses questions as to the system’s capacity to administer WTO law in an efficient and effective manner, with implications for its legitimacy. Despite economics’ increased relevance, WTO law has not devised a way to implement a suitable response and its approach seems ambivalent. By contrast, EU competition law has undergone (arguably, successfully) a conscious transition to a 'more economic approach'. Could its experience provide guidance for the implementation of a more economic approach to WTO law, despite the two systems' institutional differences? This monograph compares WTO law and dispute settlement’s approach to economics with EU competition law’s more economic approach. The applied method is normative comparative law and economics and the relevant benchmarks adopted are administrability, effectiveness, and efficiency, taking into account legal certainty, predictability, consistency, coherence, clarity, deterrence, capacity, and the effects of judicial mistake. Three broad aspects of the two systems are compared: market definition and 'likeness', theories of harm and trade effects, and quantification in sanctions and remedies. Through detailed description of the two systems’ features and thorough evaluation according to the benchmarks, WTO law is shown to be less administrable, effective, and efficient than EU competition law. Explanations unrelated to the more economic approach are sought, but the majority are rejected. The monograph makes normative conclusions for WTO law’s improvement through the correct implementation of a more economic approach. Most importantly, it suggests increased capacity for all key actors in WTO dispute settlement and innovative ways to understand fundamental WTO concepts such as 'likeness', 'less favourable treatment', trade harm, trade effects, and the level of permissible countermeasures. I avhandlingen undersöks tillämpningen av en mer ekonomisk metod i WTO rätt och WTO tvistlösning, i jämförelse med EU konkurrensrätts utförande av en ekonomisk metod baserad på utförliga marknadsdefinitioner, skadeteorier och effekter, och kvantifiering av konkurrensskadan. WTO rätt och dess tvistlösningsmekanism är i allmänt mycket framgångsrika. Rättspraxisen från WTO:s tvistlösningsorgan har bidragit till WTO:s legitimitet och lett till ökad rättssäkerhet i handelsrelationer mellan WTO:s medlemsstater och ett mer vetenskapligt och mindre godtyckligt förhållningssätt till WTO rätt och internationell handel. Det sistnämnda fenomenet manifesteras genom ökat användande av ekonomisk teori och metod samt ekonometrisk bevisning i tvistlösning. Även om det kan anses vara positivt, i med att det minskar juridisk diskretion, det medför emellertid några risker, eftersom det ökar komplexiteten i rättspraxisen och sätter höga krav på systemets kapacitet att administrera WTO rätt på ett effektivt sätt; resultatet må vara att legitimiteten snarare minskar än ökar. WTO rätt har hittills inte tänkt ut ett tillfredställande sätt att angripa problemet och dess förhållningssätt är fortfarande mycket ambivalent. Däremot har EU konkurrensrätt genomgått med framgång en medveten metamorfos från ett system fixerat på syftesöverträdelser och per se missbruk av dominerande ställning till ett system som tar hänsyn till ekonomisk teori och metod. Med den bakgrunden och baserat på ostrukturerade iakttagelser i de två rättsystemen uppstår frågan: Kan EU konkurrensrätts tillämpning av en mer ekonomisk metod instruera WTO rätts förhållningssätt till ekonomisk teori och metod? Den metod som tillämpas i avhandlingen är normativ komparativ rättsekonomisk analys och är en kombination av komparativ rätt och rättsekonomi. De riktmärken som används för att utvärdera EU konkurrensrätt och WTO rätt är administerbarhet och effektivitet, vilka inbegriper bl.a. rättsäkerhet, förutsägbarhet, följdriktighet, koherens, klarhet, avskräckning från att begå överträdelser, kompetens av inblandade aktörer, samt effekterna av juridiskt misstag. Tre breda aspekter av WTO rätt och EU konkurrensrätt jämförs: marknadsdefinition och ’likhet’, skadeteorier och handelseffekter, samt kvantifiering av sanktioner och åtgärder. Varje aspekt behandlas i en separat del. Marknadsdefinition och ’likhet’ inleder (Del I), följd av skadeteorier och handelseffekter (Del II) och kvantifiering av sanktioner och åtgärder (Del III). Varje del innefattar tre kapitel, ett som beskriver EU konkurrensrätt (kapitel 2, 5, och 8), ett som beskriver WTO rätt (kapitel 3, 6, och 9), och ett som jämför de två rättssystemen (kapitel 4, 7, och 10). Varje jämförande kapitel innehåller fyra avsnitt: först fastställs möjligheten för funktionell komparation, därefter jämförs WTO rätt med EU konkurrensrätt, sedan sökes alternativa förklaringar för de två rättssystemens likheter och skillnader, och till sist utvärderas WTO rätt. I avhandlingens sista del (Epilog) samlas slutsatserna från komparationen och WTO rätt utvärderas holistiskt (kapitel 11). WTO rätt och WTO:s tvistlösningsmekanism visas vara mindre administerbara och mindre effektiva än EU konkurrensrätt. De två rättssystem delar slutmål (konsumentnytta och välfärd), vilket möjliggör normativa slutsatser att dras. Dessa berör, å ena sidan, tolkningen av nyckelbegrepp i WTO rätt, t.ex. vilka faktorer ska tas hänsyn till för att bevisa ’likhet’, vad är ’ofördelaktig behandling av utländska produkter och tjänster’, vad är ’skada’ i WTO-rättslig mening, och vilken skada kan räknas in i tillåtna motåtgärder. Å andra sidan, berör de normativa slutsatserna WTO:s interna institutionella kapacitet och kompetens samt införskaffandet av extern kompetens i form av ekonomisk expertis. The cover photo is provided courtesy of the artist (Christodoulos Panayiotou) and Galerie Nordenhake Stockholm AB. © Carl Henrik Tillberg (the photographer).EU FP7 funding relates solely to chapter 8.

The goal of the current work is to delineate national judicial responses to Commission-issued competition soft law within two EU jurisdictions – the UK and the Netherlands. For this purpose, a comparative methodology is adopted and – in terms of theory – several hypotheses of possible judicial attitudes coined in a previous work are brought together under the term national ‘judicial recognition’ of supranational competition soft law. The term ‘recognition’ was chosen, because it has a positive connotation, which signals the author’s discord with the predominant doctrinal scholarly view that soft law should be seen as a danger to democratic rule of law principles and thus become (solely) an object of judicial resistance. It is argued that, to the contrary, competition soft law could and should become ‘positively recognized’ by courts of law since that would enhance enforcement consistency and the concomitant legal certainty and uniform application – the normative starting points for this study. The empirical picture that transpires, however, shows a landscape different from the desired one.

The goal of the current work is to delineate national judicial responses to Commission-issued competition soft law within two EU jurisdictions – the UK and the Netherlands. For this purpose, a comparative methodology is adopted and – in terms of theory – several hypotheses of possible judicial attitudes coined in a previous work are brought together under the term national ‘judicial recognition’ of supranational competition soft law. The term ‘recognition’ was chosen, because it has a positive connotation, which signals the author’s discord with the predominant doctrinal scholarly view that soft law should be seen as a danger to democratic rule of law principles and thus become (solely) an object of judicial resistance. It is argued that, to the contrary, competition soft law could and should become ‘positively recognized’ by courts of law since that would enhance enforcement consistency and the concomitant legal certainty and uniform application – the normative starting points for this study. The empirical picture that transpires, however, shows a landscape different from the desired one.

In September 2012 the European Commission opened a formal investigation of Gazprom’s business practices in the EU. The Gazprom investigation raises a number of questions. One of them is the issue of jurisdiction—whether EU competition law applies to Gazprom, a foreign company. A day after the opening of the proceeding, in a press note and alongside other issues, Gazprom raised the question of jurisdiction, noting that it complies with laws of the countries in which it operates and that is it ‘registered outside the jurisdiction of the EU’. This statement, possibly, prompted some commentators to consider the applicability of EU law in this case.In a piece in the ECLR, entitled ‘Iron Curtain at the border: Gazprom and the Russian blocking order to prevent the extraterritoriality of EU competition law’, Sean Morris offered his views on some of the aspects of the Gazprom case, including the issue of jurisdiction. Morris discussed also the blocking Order issued by the Russian President in response to the European Commission’s investigation, and its possible effects in the Gazprom case.This article seeks to add a few important and relevant issues of law relating to extraterritoriality and the reach of EU law generally and in particular— in the context of the Gazprom investigation and in the light of the Morris article. This piece also sheds some light on the considerations which might have informed Russia’s hastily enactment of the Blocking Order.

This paper is an effort to understand how the tramp shipping industry works, which is considered to work close to perfect competition model, where the atomicity, homogeneity and information transparency are evident. Many small shipping companies compete for a volatile and unpredictable demand. Despite there are some entry barriers to the market, these can be easily mitigated by the way this market works. Tramp shipping companies co-operate among them in pools, in order to bid for large contracts of affreightment, which otherwise, shipowners could not perform on their own. Tramp shipping pools raise competition concerns, and under the EU Competition Rules, these agreements shall be assessed on case-by-case basis in order to determine whether an agreement may jeopardise competition within common market. To do so, an assessment under Article 101 TFEU is required. Normally, tramp shipping pools created for the right purposes, do not entail competition restrictions. Conversely, those agreements that have a combined market share considerably high or involve hardcore restrictions, are prohibited under Article 101 (1). These agreements have three options: terminate their agreement; demonstrate that economic efficiencies brought by the agreement outweigh restrictions under Article 101 (3); and lastly and most appealing, try to restructure the agreement creating a full-function joint venture in order to fall under a more certain legal framework, the EC Merger Rules.

The EU competition enforcement regime underwent quite some changes in both its substantive and procedural workings when Regulation 1/2003 – the 'Modernization' Regulation – entered into force on May 1st 2004. The procedural decentralization and the change in the logic of substantive enforcement the Regulation introduced created challenges for the new system, especially in light of the general principle of legal certainty. Mindful of possible (and plausible) enforcement inconsistencies, the European Commission maintained that certainty is going to be well served by the already existing and well-developed competition case law of the CJEU, the Commission’s own decisional practice, and, last but not least, its soft law guidance in the forms of guidelines, notices, communications, etc.It is these latter instruments and their value for steering judicial discourse in EU Member States that the current paper is interested in. Since the year 2004, the significance of Commission-issued soft law has increased because the latter instruments provide an in-depth account and guidance of, respectively, the enforcement practice and priorities of the Commission. These are important functions to perform in a highly uncertain and fluid policy enforcement setting, where the multiplicity of decision-makers and new substantive enforcement goals make it increasingly difficult for businesses to predict what constitutes anti-competitive behavior and what not. In this sense, and in view of legal certainty, it would be desirable that not only businesses and national competition enforcement agencies (NCAs), but also the national judiciary took heed of the said soft instruments. The question asked in this paper, thus, is whether and if so – how – do national courts take Commission-issued competition soft law into account in their judgments? Since there are indications that the provisions of competition soft law are being disregarded at the supranational level (take the recent Expedia judgment of the CJEU), it could be that national courts exhibit a similar approach. Such a development, however, is deemed undesirable from the theoretical standpoint of legal certainty, since instruments which contain and elaborate on the substantive core of the re-designed regime, and which are explicitly designed to ensure consistency in a moment of fluidity in the law, cannot simply be ignored, especially by the judiciary. As ultimate instances of normative ordering, courts have the responsibility to maintain legal certainty, and to do so, in the context of EU competition law, they should engage with the pertinent soft instruments. To this end, the current paper proposes a theoretical framework for national judicial engagement with competition soft law instruments.

The EU competition enforcement regime underwent quite some changes in both its substantive and procedural workings when Regulation 1/2003 – the 'Modernization' Regulation – entered into force on May 1st 2004. The procedural decentralization and the change in the logic of substantive enforcement the Regulation introduced created challenges for the new system, especially in light of the general principle of legal certainty. Mindful of possible (and plausible) enforcement inconsistencies, the European Commission maintained that certainty is going to be well served by the already existing and well-developed competition case law of the CJEU, the Commission’s own decisional practice, and, last but not least, its soft law guidance in the forms of guidelines, notices, communications, etc. It is these latter instruments and their value for steering judicial discourse in EU Member States that the current paper is interested in. Since the year 2004, the significance of Commission-issued soft law has increased because the latter instruments provide an in-depth account and guidance of, respectively, the enforcement practice and priorities of the Commission. These are important functions to perform in a highly uncertain and fluid policy enforcement setting, where the multiplicity of decision-makers and new substantive enforcement goals make it increasingly difficult for businesses to predict what constitutes anti-competitive behavior and what not. In this sense, and in view of legal certainty, it would be desirable that not only businesses and national competition enforcement agencies (NCAs), but also the national judiciary took heed of the said soft instruments. The question asked in this paper, thus, is whether and if so – how – do national courts take Commission-issued competition soft law into account in their judgments? Since there are indications that the provisions of competition soft law are being disregarded at the supranational level (take the recent Expedia judgment of the CJEU), it could be that national courts exhibit a similar approach. Such a development, however, is deemed undesirable from the theoretical standpoint of legal certainty, since instruments which contain and elaborate on the substantive core of the re-designed regime, and which are explicitly designed to ensure consistency in a moment of fluidity in the law, cannot simply be ignored, especially by the judiciary. As ultimate instances of normative ordering, courts have the responsibility to maintain legal certainty, and to do so, in the context of EU competition law, they should engage with the pertinent soft instruments. To this end, the current paper proposes a theoretical framework for national judicial engagement with competition soft law instruments.

This chapter is part of a volume on limits of competition law. It explores a particular type of limitations, which has not received the attention it deserves. These limits stem from finite legal technology and bear on imports from economics into competition law. There is usually more than one way to import any given element of economic wisdom into a court decision, but there is a finite number of options. Therefore, courts who are willing to take on economic arguments will have to make choices as to the most suited legal technique among those available. In this article, I offer a typology of available legal techniques and explain their respective characteristics in terms of three characteristics, which matter for importing economics: the degree of legal change implied, the flexibility of the importing technique and the degree of fidelity to economic reasoning. I argue that it is important that courts become aware of the choice-of-technique decisions they are making and that scholars consider this methodological dimension of competition law & economics.

The purpose of this paper is to provide a full account of the new European rules on distribution agreements adopted in April 2010, i.e. Regulation 330/2010 and its concomitant Guidelines on Vertical Restraints. In doing so the paper covers all aspects of the law in this field - with the notable exception of agency agreements - and discusses the development of the law since the 1960s to the present day. Such development is principally characterised by an increased focus on the economic effects produced by vertical restraints and a movement away from a strict form-based approach. The paper is divided into five sections. Following a short introduction, section II sets out the different types of vertical restraint commonly found in commercial contracts of a vertical nature and the theories of harm (such as risks of foreclosure and collusion) and pro-competitive effects ascribed to them under EU competition law. Section II discusses not only those types of vertical restraint that one may traditionally come across - such as resale price maintenance clauses - but also discusses two novel areas, namely upfront access payments and category management agreements which relate to the issue of buyer power. Section III offers a step-by-step overview of the method that in our eyes ought ideally be followed by agencies, firms and their legal counsels when engaging in a self asssessment - in the post notification era - of vertical agreements under Article 101 TFEU. Section IV deals with the issue of online distribution, which sparked intense controversy during the stakeholder consultation process. In line with commercial reality and the ubiquity of online commerce it is in our opinion entirely appropariate that the new law on vertical restraints now provides extensive guidance on the issue. Finally a brief conclusion is provided in section V.