Competition soft law in French and German courts: A challenge for online sales bans only

Ten years after the decentralization of EU competition law enforcement, this paper aims to ascertain through empirical means whether Commission-issued competition guidelines and notices (soft law) actually help to enhance enforcement consistency at the national level. This is what the European Commission itself maintained in White Paper on Modernization in 1999. The main premise of the White Paper is that if soft law is to help enhance consistency (a goal central to the current regime), it needs to be treated consistently by national judiciaries within and across EU jurisdictions – a difficult task, however, given its lack of binding force. Therefore, to ascertain the extent to which and how national courts in two select jurisdictions – France and Germany – engage or refuse to engage with supranational soft law, a theoretical framework of ‘judicial recognition’ of soft law is superimposed on a sample of 84 national judgments. While not discouraging, the results show some significant discrepancies that require further attention.