Competition soft law in national courts - Quo vadis

This paper is based on an empirical data-set of 103 national competition cases of EU Member States, which contain judicial reasoning on supranational, Commission-issued competition soft law. The paper enquires into the possible reasons for detected national judicial attitudes to supranational soft competition instruments – namely – endorsement, rejection, persuasion, and neglect.

In particular, the empirical data suggests that the overwhelming majority of judicial endorsement of soft law happens with regard to the so-called Guidelines on Vertical Restraints, which are also the most cited supranational competition soft instrument in the courts of the jurisdictions under observation (Germany, France, the Netherlands and the United Kingdom). A staggering 62 per cent of all judicial soft law references are references to the said guidelines. By contrast, the so-called Article 82 Guidance Paper receives the lowest amount of references – a mere 8 per cent – and is also more often than not either rejected or neglected by the national judiciaries. The other two soft instruments under observation in this study – the Guidelines on Horizontal Cooperation Agreements and the Article 81(3) Guidelines – are engaged with sparingly (they comprise 13 and 16 per cent of the total cases, respectively) and with varying success. The thus summarised results offer fruitful ground for analysis, which this paper performs in its Section 4. Several factors that could explain the above observations are therefore discussed in detail.