Competition in Times of Democratic Crisis: Domestic Judicial Reforms and the Effectiveness of EU Competition Law

The principle of loyal cooperation established in the EU law obliges the courts of the Member States of the EU to ensure the effective judicial protection of rights of persons stemming from the EU law. In the absence of harmonized norms of the civil procedure at the EU level, national courts are procedurally autonomous in enforcing judicial protection of the above mentioned rights, however, in applying national laws they shall comply with principles of equivalence and effectiveness of the EU law. In cases concerning violation of rights stemming from the EU law, courts of the Member States are faced with applications for the indication of provisional measures necessary to ensure effective judicial protection. The European Court of Justice treats such provisional measures as an integral part of the right to effective judicial protection. Compliance with the principle of effective judicial protection of the EU law requires national laws to guarantee the right to obtain provisional measures before national courts. In the light of the case law of the European Court of Justice, two situations where application of provisional measures may be granted by national judges shall be distinguished: (i) the first case concerns the suspension of the application of national laws incompatible with EU law pending decision on such compatibility, and (ii) the second one deals with the suspension of application of national measures implementing EU legal acts pending the decision on validity of such EU legal act. Under the first type of situations, national courts shall apply procedural guarantees embodied in the national laws. Under the second one, the ECJ has spelled out minimum uniform conditions making judicial protection effective: national procedural rules shall satisfy the principle of equivalence and the principle of effectiveness. In practice, a problem is frequently faced when such kind of provisional measures in not expressis verbis embodied in the text of national law. This hinders the right of the parties concerned to make use of such provisional measures significantly. Such hindrances limit the right of the parties concerned to effective judicial protection and may lead to violation of the EU law. For instance, The Code of Civil Procedure of Lithuania does not provide for special rules concerning suspension of national legal provisions in the above-mentioned situations. However, bearing in mind that the Court of Justice recognized the right to obtain interim measures before national courts to be an integral part of the EU concept of direct, immediate and effective judicial protection, national court should have the right to grant such provisional measures. Therefore, it is submitted that it would be appropriate for the national legislator of Lithuania to resolve the question on filling this gap in national legal system.

European Regulators in the Network Sectors: Revolution or Evolution?

EU competition law is enforced parallel by the EU Commission and 28 national competition authorities (NCAs) in a multi-level governance system composed of EU and national procedural laws. Regulation 1/2003 established the European Competition Network (ECN) in order to coordinate parallel proceedings between the Commission and the NCAs. This chapter analyses the shared enforcement of EU competition law from the perspective of political and judicial accountability. The chapter focuses on the accountability of the Commission, the NCAs and the ECN in their role of/as main actors of the shared enforcement. Two jurisdictions are used to illustrate the role and powers of the NCAs: the Netherlands and Hungary. After analysis of the powers and roles of the three respective actors (the Commission, the NCAs and the ECN) of parallel enforcement, section 3 examines judicial and political accountability and section 4 concludes.

Parallel Enforcement and Accountability: The Case of EU Competition Law

The research focus of the paper is on the relation between general principles, fundamental rights and the rule of law in the EU. The role of the judiciary is evaluated through the prism of the jurisprudence of the Court of Justice of the EU (CJEU) with a particular focus on the formula, introduced in the Associação Sindical dos Juízes Portugueses judgment and subsequent decisions by the CJEU, related to the rule of law and independence of the judiciary. A thorough assessment of the relation between fundamental rights, foundational values of the EU such as the rule of law and effective judicial protection through the methodological evaluation of the effectiveness and functional interpretation is included. The core of the research reflects the functional approach of the CJEU with respect to judicial independence as the condition for effective protection of fundamental rights and EU law. Especially crucial is the role of national courts for upholding the rule of law on EU level. The role of the EU’s Rule of Law Report mechanism, introduced in 2020, is analysed as judicial independence forms an essential part of the reports. The EU Rule of Law reports serve as illustrations of the underlying problems, related to the rule of law and in particular the independence of the judiciary and effective judicial protection and related enforcement and implementation issues.

The article explores the ECJ case law on effective judicial protection in EAW proceedings, looking critically at the interpretation of Article 47 CFR in this context. The article reveals the approach to national procedural autonomy within the EAW case law, emerging most distinctly from the ECJ’s interpretation of “judicial authority” under Framework Decision 2002/584/JHA. The case law analysis challenges the scholarly arguments according to which the Court’s interpretation of Article 47 CFR has contributed to a significant erosion of national procedural autonomy. By contrast, the article concludes that in the context of judicial cooperation in criminal matters, the ECJ case law has mostly sought to mitigate the impact of Article 47 on national procedural autonomy. The Court may have done so to accommodate specific policy priorities pertaining to the nature of the EAW system (e.g. the fight against impunity) and uphold the principle of mutual trust.While showing internal incoherence in the interpretation of the notion of “judicial independence”, the Court has thus far failed to provide convincing arguments to secure the right to an effective judicial remedy for requested individuals in the cases at hand. European arrest warrant, effective judicial protection, procedural autonomy, independence of the judiciary, right to an effective remedy

By focusing on the adoption of EU minimum standards in the field of procedural rights in criminal proceedings, this article will assess the relationship between secondary law harmonisation, and the principles of effectiveness of EU law and of effective judicial protection in Europe's area of criminal justice. This article will begin by exploring the third pillar legacy on harmonisation, by focusing on what the EU has not done (i.e.to legislate on a horizontal instrument on defence rights) and what the EU has done (i.e.to legislate specifically on judgments in absentia with the specific purpose of clarifying, and in some instances limiting, the grounds for refusal in a number of EU mutual recognition measures). The analysis will then examine the impact of the entry into force of the Lisbon Treaty and will evaluate critically the impact of EU harmonisation measures on defence rights on effective judicial protection. The analysis will focus on the relationship between EU law and national law, as well as on the relationship between EU law and the Charter and ECHR. Great emphasis will be placed on the strengthening of enforcement avenues offered by the normalisation of EU criminal law after Lisbon. These avenues have the potential to ensure that, even minimum, harmonisation measures in the field of defence rights can have a real impact on enhancing effective judicial protection and achieving the effectiveness of EU legislation on the ground.

The European Competition Network: Structure, Management and Initial Experiences of Policy Enforcement

Effective Judicial Protection in Consumer Protection in the ECJ's Case Law

The centralization of the prudential banking supervision within the EU has been organized via the Single Supervisory Mechanism, through a mechanism existing of the European Central Bank (ECB) and the national supervisors, and embedded in the composite legal order within the EU. The said mechanism required some innovative solutions to ensure effective supervision, including the obligation for the ECB, laid down in Article 4(3) of the SSM Regulation, to apply national law transposing the relevant directives. As a result of this novelty under Union law, the CJEU is facing actions brought before it against ECB decisions based on national law. Therefore, in its review national law is to be assessed as a question of law. The central question in this research is how effective judicial protection can be ensured by the CJEU in such case, considering the limitations to the CJEU's jurisdiction with respect to national law. The article starts with discussing the recent cases in which the CJEU was asked to review ECB decisions based on national law (Joined Cases C-152/18 P and C-153/18 P Crédit mutuel Arkéa v ECB & Joined Cases T-133/16 to T-136/16 Caisse régionale de crédit agricole mutuel Alpes Provence v ECB), and the legal questions that remain unanswered in this respect. It then explores the CJEU's approach vis-à-vis national law in other types of legal proceedings. The lessons learned from the latter analysis is subsequently discussed, as well as new ideas to ensure a more effective judicial protection of national law, on which ECB decisions are based, before the CJEU.

This paper assesses the functioning of the European Competition Network (ECN) introduced by the EC’s modernisation package of 2004 to replace the European Commission’s enforcement monopoly in the field of competition law. By all accounts, and contrary to the fears of early critics, the modernisation of EC competition policy and the decentralisation of its enforcement have not led to disintegration within the network of competition regulators. The institutional differences between national competition authorities (NCAs) have so far not had a negative impact. The ECN is fuelled by the nature of the increasingly technocratic and expert-driven discipline of competition law, as well as by the Commission’s conscious strategy of ‘soft’ centralisation. The new system is also reinforcing a specific perspective on competition law, focused on market efficiency, and viewed as an autonomous discipline divorced from outside pressures and influence by the Member States. Even though such a conclusion seems counterintuitive, overall the ECN has had, and is likely to have, a unifying effect both in enforcement and in policy formation. There are, however, pressures in the opposite direction, which might become stronger as the NCAs’ experience grows and horizontal communication increases in frequency.

This chapter assesses the cooperation between the European Commission and national competition authorities (NCAs) in a decentralised system of antitrust enforcement. The recent adoption of a Directive to empower the competition authorities of the Member States to be more effective enforcers (ECN+ Directive) aims at ensuring more effective enforcement and mutual assistance among NCAs throughout the EU by putting in place minimum guarantees and powers to detect and tackle infringements. The chapter then explains the role of the European Competition Network (ECN), how it is organised and governed. The ECN was created in conjunction with the adoption of Regulation 1/2003. It consists of the NCAs and the Commission forming together a network of public authorities applying the EU competition rules in close cooperation.

Effective judicial protection emerged as a EU law principle in the 1980s, operating alongside the Rewe principles of equivalence and effectiveness as a standard to assess national procedures for the enforcement of EU law. This article argues that the codification of effective judicial protection in Article 19 TEU and 47 of the Charter, operated by the Lisbon Treaty, has stimulated an evolution of the principle, which is evident in the recent case law of the Court of Justice. Today, effective judicial protection operates not only as a procedural principle, but also as a more substantive and structural one, and has generally acquired broader constitutional relevance. This evolution has crucial effects on the EU legal order: most importantly, it affects the division of competences between Member States and the EU, and between the Court of Justice and national courts.

INTRODUCTION The entitlement of individuals and NGOs to challenge acts or omissions concerning violations of the environmental legislation through effective judicial mechanisms constitutes an important instrument for ensuring the effective implementation of the environmental law. This can be attributed to a major extent to the particularities of the environmental litigation which arise from the specific nature of the environmental interests in the sense that the latter can either relate to the protection of the “commons” and to the damage caused to nature itself, or are diffuse and fragmented by nature, so that they cannot easily be defended by the individual claimants. Furthermore, another particularity of the environmental litigation is that there is a strong imbalance of power among the actors participating in the judicial proceedings. In this context, it seems to be more urgent in environmental law in relation to other fields of law to create an appropriate framework and to establish the necessary mechanisms, in order to guarantee effective judicial protection for providing just results. The Aarhus Convention (hereafter AC) has made a significant contribution in terms of enshrining the fundamental procedural right of access to judicial review procedures for challenging the legality of the environment-related decisions, acts and omissions of public authorities or the relevant actions of private persons, blurring thereby the dichotomy between public and individual interests characterizing traditional legal approaches (Article 9). Furthermore, the EU lawmaker revisited certain EU Directives, with the aim of ensuring compliance with the obligations arising from Article 9 of the AC (paras. 1, 2 and 4). Besides the issues concerning the standing criteria and the remedies provided, another critical issue for ensuring effective judicial protection in environmental disputes relates to what can be contested and the degree to which the courts deal with the arguments brought by the applicants for challenging the relevant acts or omissions (“scope of the review”). Both the relevant provisions of the AC and those of the EU Directives do not contain sufficiently detailed rules on this issue. Subsequently, Member States (hereafter MS) enjoy a certain level of discretion when determining the extent of the judicial review within the framework of the implementation of the AC and the transposition of the relevant provisions of the EU Directives into the national legal systems.

No cooperative scheme in EU law has displayed bigger tensions between mutual trust and fundamental rights protection than the EAW system. Despite the requirement developed by the CJEU for national courts to trust each other and recognise each other’s arrest warrants, the reality on the ground has shown high levels of distrust between national courts regarding Member States’ alignment with core EU values. In this contribution, we analyze how the CJEU has managed such tensions in the EAW system. To that effect, we first put the Court’s EAW case law into context by examining the broader language of mutual trust used by the Court in other fields of EU law. In doing so, we point out how the Court has espoused different levels of lawful distrust to be exercised in different circumstances under the scope of application of mutual trust. Given that broader context, it is contradictory for the Court to mainly view mutual trust as a requirement rather than a reality in need of permanent and continuing justification between national authorities. The latter conception of mutual trust is more apt to be the basis of EU horizontal cooperation, which must be value-based and sincere according to the Treaties. Therefore, we propose a bidimensional account of mutual trust as a legal principle, one that accommodates both trust and distrust as tools for managing the uncertainty and dynamic nature of trust-based cooperation. Finally, we explore how such account of mutual (dis)trust can be concretised by the Court and other political institutions.