Complex assessments have long represented the Pillars of Hercules of judicial review. When reviewing legal acts based on complex evaluations, courts have traditionally adopted a deferential approach, acknowledging a wide margin of discretion to the decision-maker. In several continental legal traditions, this goes under the label of “technical discretion” and is justified on the grounds of both contextual expertise and separation of powers considerations. Although the CJEU does not explicitly refer to the doctrine of technical discretion as such, it has long operated along similar lines across different policy domains. Things may however be changing, and complex assessments seem to have become less and less immune to judicial review, across different policy domains.Recording of ACELG-ACLE seminar ‘Judicial review of complex assessments in the EU: competition law and risk regulation’
In competition law, first judgments such as Consten and Grundig (1966) held that judicial review of complex economic assessments carried out by the Commission needs to “confin[e] itself [only] to an examination of the relevance of the facts and of the legal consequences, which the Commission deduces therefrom.” Since Tetra Laval (2002), the CJEU has nevertheless been reviewing “also whether the evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.”
Also risk regulation case law has witnessed a significant evolution, showing a change in the standard and scope of review. Since Pfizer (2002) (and until the recent decision in Bayer (2018), among many others), the Courts’ scrutiny has started to engage more closely with the science underpinning the legal acts under review, and technically dense judgments are no longer an exception. This has attracted both praises and criticism, but does not seem to be a transient trend.
Against this background, we would like to try and identify the (causes of) convergences and divergences between competition law and risk regulation. The findings will likely shed light also on other fields of EU policy that display a high degree of complexity and, accordingly, rely heavily on economic, scientific or similar expertise.
Andriani Kalintiri joined King’s College London as a Lecturer in Competition Law in October 2019. Previously, she was a Lecturer in Law at City, University of London (2018-2019) and a Fellow at the London School of Economics and Political Science (2016-2018). Andriani holds a PhD from Queen Mary University of London (2015), which was fully funded by a three-year Queen Mary Research Studentship; an LLM in Commercial Law from the University of Cambridge (2011); and an LLB from the University of Athens (2010). She is currently a member of the editorial team of the Journal of European Competition Law & Practice, as well as the book reviews editor of the European Competition and Regulatory Law Review. Andriani is an Associate Fellow of the Higher Education Academy and has taught at various institutions, including Cambridge, the London School of Economics and Political Science and University College London.
Andriani’s research interests lie in the formation of and the interplay between substantive and procedural rules in competition enforcement. Her work to date has examined questions of evidence assessment and judicial review in the application of the EU competition provisions, the rationale for the imputation of parental liability, and the operation of analytical shortcuts in competition enforcement with a focus on the EU system.
Annalisa Volpato is Assistant professor in European administrative law at Maastricht University. She obtained a double PhD in EU law at Maastricht University and University of Padova and she worked as a lecturer in EU law at Maastricht University. Previously, she studied law at the Université de Louvain (Erasmus) and at the University of Padova, where she graduated cum laude. In 2014, she obtained an LLM in EU law at the College of Europe.
Annalisa also worked at the Legal Service of the European Commission and she was trainee in law firms, qualifying as lawyer in 2015. Her research interests concern the institutional and administrative aspects of EU law, in particular the delegation of powers to EU institutions, EU agencies and standardisation bodies.
Andriani Kalintiri will base her talk on the paper ‘What’s in a name? The marginal standard of review of “complex economic assessments” in EU competition enforcement,’ which was published in Common Market Law Review. If you would like to read it, the paper is available in an open access version (King’s College London) and on the publisher’s website.
Preliminary reflections on Annalisa Volpato’s presentation can be found in her working paper ‘Judicial Review of the Acts of EU Agencies: Discretion Escaping Scrutiny?’ which is available for download from SSRN.
The event will be held on zoom.