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Interview with Marc van der Woude: "Law & Economics: Why bother with economists?"

Concurrences Review

Monday, June 15, 2015 from 8:30 AM to 7:00 PM (CEST)

Interview with Marc van der Woude: "Law & Economics:...

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New Frontiers of Antitrust 2015



Law & Economics:

Why bother with economists?


Interview with Marc van der Woude

The New Frontiers of antitrust conference will be held on June 15, 2015 at Ministry of Economics, Paris. Jérôme Philippe — Lawyer, Freshfields Bruckhaus Deringer — has interviewed Marc van der Woude — judge, General Court of European Union — who will participate in the panel discussion: "Law & Economics: Why bother with economists?". Other panel speakers include: Laurence Idot, Professor, University Paris II, Massimo Motta, Chief Competition Economist, UE Commission and Kai-Uwe Kühn, Senior Consultant, CRA.


Read the full interview below and register for the conference here.

Jérôme Philippe:  The European Commission and many National Competition Authorities have hired teams of economists led by Chief Economists. As regards national courts, in several countries competition matters are flagged and attributed to selected courts which tend to specialise themselves, the judges of which receiving economic training. What about the Court of Justice and the General Court? Do they have in-house economists? Can Judges receive an economic training? Is there a possibility to enter into agreements with economic institutes in order to obtain in-depth knowledge or training on specific economic issues?

Marc van der Woude:  There is no chief economist at the Luxembourg Courts. There used to be an economist at the General Court at the beginning of the past decade, but there was not sufficient demand for his services. As regards the situation today, I suppose some judges and advocates general have a background in economics, but there is no official education or training in that discipline. Also, the teams of the judges may include “référendaires” which have a double qualification in law and economics. I am not aware of any training programmes or contracts which the Court may have concluded on certain economic topics.

Now, is this a problem? Obviously, learning and training are always welcome. There is always room for improvement. But following courses has a cost: the time we spend on training programmes is time we will not be able to use for writing judgments. In addition, in deciding on the allocation of our time, we must set priorities. I would like to recall in this respect that the Union courts must rule on a wide range of issues. For example, in 2014 competition cases only represented 4.5 % percent of the number of incoming cases at the General Court. By contrast, State aid matters represented 16 % of total new arrivals. These findings lead me to a personal observation: if I could chose to follow training programmes I would focus on business related issues, such as accountancy and valuation methods, which are directly relevant in the field of state aid law, in particular as regards the application of the private market investor principle.

Jérôme Philippe:
In which areas does economic analysis look to you most (or least) helpful for solving the questions addressed to the Court of Justice or to the General Court? Are there areas in which economic analysis appears to be insufficient? In particular, what about infringements by object? Generally speaking, do you think the use of economics before he Court of Justice and the General Court has changed over time?

As regards infringements by object, wasn’t there a tendency, over the past years, to forget a little too much about economic analysis in favour of automatic rules? Do you see a risk that infringement by object becomes in practice a concept capturing infringements for which no-one is able to properly establish a theory of harm?

Marc van der Woude: 
I have always been puzzled by the issue of economic analysis. In my view the key question is not whether the Courts need more economic analysis, but whether they apply the right legal test and whether they got the facts right. Economics can help them in apprehending the facts and choosing the right test. Even so, in the vast majority of incoming competition cases, which are the horizontal cartel cases, facts do not play a major role. Indeed, in these cases the applicants admitted the facts in their leniency applications.

With respect to your question on objet restrictions, I agree that the Union courts have sometimes too rapidly established their existence. In addition, there has been a tendency to amalgamate object restrictions, on the one hand, with very serious restrictions within the meaning of the guidelines, on the other hand. This leads to automaticity in their application and to very high fines. I refer in this respect to an article which I wrote together with my colleague Prof. Rein Wesseling in 2012. We submitted that the notion of object restrictions should be used only in situations in which, according to established experience, collusion can serve no other purpose than to restrict competition. I see the judgement of the Court of Justice in Cartes Bancaires as a step in the direction that restrictions by object should correspond to naked restrictions. Now, if my interpretation of this judgment is correct, there should be less scope for restrictions by object. In consequence, more agreements should be assessed on the basis of their actual or potential restrictive effects. One could argue that this opens more opportunities for what you call economic analysis and what I tend to call an in depth factual assessment.

Jérôme Philippe:  To which extent do you consider that the Court of Justice and the General Court shall review the economic analysis that appears in the Commission’s decisions? The case law has admitted a rather wide margin of appreciation of the Commission in relation to complex matters, amongst which many economic questions are likely to stand. Would this mean that the Court of Justice and the General Court would by nature be limited in the review of economic issues that they can perform?

Marc van der Woude: 
In cases involving criminal or quasi-criminal sanctions, the Commission does not and should not enjoy any margin of discretion that would not be amenable to judicial review. That is how I read the Court’s case law. Let me remind ground 54 of the judgment in Telefonica : “…, whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. The EU judicature must, among other things, not only establish whether the evidence put forward is factually accurate, reliable and consistent, but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it.” I admit that this language is woolly, but what it boils down to is that the complexity of an issue should not be a reason for a judge to dodge his or her responsibilities

Jérôme Philippe: It is often difficult for the parties to handle economic analysis before the Court of Justice or the General Court, because briefs must remain short and also because there is always this feeling that the more economic and complex a ground of appeal will sound, the more likely it is to be rejected because it will then be found to fall within the Commission’s margin of appreciation. In view of your experience, what advice would you give to lawyers and economists, both on substance and on presentation?

Marc van der Woude: 
As mentioned above, the competition cases in which economic analysis can play a role are relatively rare. They mostly relate to mergers or abuse of dominance. I understand that there is the impression on the side of the bar that the latter category of cases cannot be won, whatever the applicant says. I have not studied this issue in depth, but the bar should realize that the relative scarcity of abuse of dominance cases significantly complicates making statistically relevant statements. In addition, the Commission does not take these cases light heartedly. One may agree or disagree with the outcome of the Commission’s procedures, but they are generally speaking very fact intensive and take several years.

I admit that the limitation of the number of pages for an application contesting the legality of a decision which can be several hundreds of pages long can be perceived as harsh. Please note, however, that the new rules of procedure do allow for derogations and that abuse of dominance cases would be typical candidates for such derogations. I do not agree that the Union courts are opposed to economic arguments, provided that they can made operational. Finally, one should never forget one golden rule; if it takes you umpteen pages to make your point, it most probably means that you do not have any.

For the complete agenda of the conference and the list of the keynote speakers, visit:

Have questions about Interview with Marc van der Woude: "Law & Economics: Why bother with economists?"? Contact Concurrences Review

When & Where

Ministry of Economics
139 rue de Bercy, Paris | M° Bercy
75012 Paris

Monday, June 15, 2015 from 8:30 AM to 7:00 PM (CEST)

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The Paris “New Frontiers of Antitrust” conference is a unique occasion to network with some of today’s most influential global leaders in competition law. This conference, held each year in Paris since 2009, now ranks first among the European antitrust independent events in terms of venue, press reports and audience. The 2019 Steering Committee, headed by Frédéric Jenny, includes Prof. Laurence Idot, Prof. Nicolas Petit and Nicolas Charbit.

All tariffs include breakfast, coffee, lunch and cocktail reception. Conference credited for the Paris Bar continuing legal education. Governmental agencies and academics registrations must be sent with valid proof. Languages: English - French (translation). Limited places available due to the conference venue. Payment must be received prior to the conference. There will be no refund after 29 April 2019. Cancellations must be received in writing; cancellations received in writing up to 2 weeks before the conference will receive a refund less 15 %. Substitute delegates are welcome at any time. Photos will be taken at the event; attendees agree for the organizer to use these photos, unless otherwise required in writing. This event is organised by Concurrences Review and is co-sponsored by legal, economic and media partners.

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