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Editor: D. Daniel Sokol
University of Florida
Levin College of Law

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Thursday, November 27, 2008

Judicial Review in French Competition Law and Economic Regulation - A Post-Commission v. Tetra Laval Assessment

Posted by D. Daniel Sokol

Nicolas Petit, University of Liege Law (and Howrey) and Louise Rabeux (Howrey) provide some analysis on Judicial Review in French Competition Law and Economic Regulation - A Post-Commission v. Tetra Laval Assessment.

ABSTRACT: The present article seeks to assess the degree of judicial scrutiny performed by French courts when reviewing National Competition Authorities ("NCAs") and National Regulatory Authorities ("NRAs") decisions in the aftermath of the seminal ruling handed down by the European Court of Justice (the "ECJ") in Commission vs. Tetra Laval.

In this judgment, the ECJ considered that the European Community ("EC") courts should refrain from engaging in a de novo assessment of the decisions adopted by the European Commission (the "Commission"), when enforcing EC competition rules and, arguably, in other fields such as sector-specific regulation.

In light of the general duty of Member States to fully ensure the effet utile of EC legislation, the question arises whether the Tetra Laval standard of judicial review promoted by the ECJ has been endorsed by national courts, when reviewing decisions of NCAs and NRAs. Indeed, the equally ranking principle of procedural autonomy implies that national legal orders should remain free to decide the degree of judicial scrutiny applicable to decisions from national regulators.

The present article examines whether the French courts have drawn inspiration from the ECJ's lax standard of judicial review in Commission vs. Tetra Laval, or if, on the contrary, a stricter standard prevails under French law. To that end, it is divided into four sections, which follow a chronological approach. The first section provides an overview of the specificities of the French judicial review system in the pre-Tetra Laval world (I). As in the French judicial system many courts have jurisdiction over regulators' decisions, it seeks to clarify who judges the regulators, the judicial remedies available to regulated entities and the degree of judicial scrutiny traditionally exercised over regulators' decisions in the pre-Tetra Laval period.

The second section offers a brief analysis of Commission vs. Tetra Laval where the Court introduced a new standard of judicial review different from that found in previous case-law. It argues that the ECJ's judgment marks a striking piece of judicial deference towards regulators' decisions (II).

The third section determines whether the Tetra Laval judgment has impacted on the degree of judicial scrutiny applied in practice by French courts when reviewing regulators' decisions in the areas of competition law (including merger control and antitrust) and sector-specific regulation (III). We find that French courts have not followed the Tetra Laval ruling in the area of competition law, and, to the contrary, that they scrutinize intensively the procedural aspects but also the merits of the NCAs' decisions. By contrast, French courts display a much higher degree of deference with respect to NRAs' decisions in the field of sector-specific regulation.

The fourth section offers a brief conclusion (IV).

http://lawprofessors.typepad.com/antitrustprof_blog/2008/11/judicial-review.html

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