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EU competition law will undergo a radical change of emphasis in 2016. Traditionally competition law was seen as an aspect of public law enforcement undertaken by the European Commission, centralised in Brussels. Over time, the nature of enforcement of EU competition law has changed. One shift in emphasis is the role of private enforcement, by competitors, individuals (for example consumers – you and me), parties to the cartel agreements and collective action, often through consumer protection organisations at the national level. Another dimension is that  criminal law enforcement has gained acceptance in some Member States, with varying  sanctions, ranging from individual fines to imprisonment.

Since 2004 the European Commission has encouraged the enforcement of EU competition law at the national level, in the expectation that this will free up European Commission time to investigate the hard core cartels and super dominant firms whose anti-competitive conduct has a bigger impact on the Single Market and competition in the EU. This strategy has paid off at the EU level: cartel fines have increased dramatically and investigations into Microsoft, Google, Intel, Gazprom feature prominently in the financial news.

The other side of the equation, increased national enforcement of EU competition law, is harder to gauge. Some jurisdictions, such as the United Kingdom and Portugal, have created specialised competition law courts, while other jurisdictions have created specialised chambers of commercial courts. But it is very hard to find statistics of the actual number of judges and competition law cases that are brought before the national courts. In some Member States EU law is still a novelty and competition law is not part of the general law school curriculum. Thus lawyers and judges often lack expertise in competition law, especially the way in which  the modern development of competition law has used economics to underpin case analysis. The failure to expand the EU budget as the EU has increased in size has also meant that English has now become the working language of EU competition law.

In 2002 the European Commission began a funded training programme for national judges. Over 10m euro has been spent on the training programmes, but to date there has been no evaluation of what it has achieved. Thus in March 2015 I embarked on such an evaluation with colleagues at ERA,  Trier (Germany)  and Ecorys, an economics consultancy, based in Brussels, in order to present proposals to the European Commission on the future direction of training national judges. We were aided by a High level Group of Experts whom we used to test our findings and to receive feedback on our methodology. The evaluation is necessary and timely since by the Member States must implement a new Damages Directive (2014/104)   by 27 December 2016 and it is expected that this will give rise to a greater amount of competition law litigation at the national level. Are the national judges prepared for this?

Our research methodology has a quantitative and qualitative dimension. We have mapped, for the first time, the courts of the Member States to discover exactly how many national judges may potentially be asked to judge a competition law issue. An on-line survey was conducted asking judges to self-assess their training needs, a consultation was undertaken with stakeholders (national competition authorities, practising lawyers, training providers). We also organised three Focus Group meetings with stakeholders in Lisbon, Scandicci (Florence) and Helsinki and held fringe events at European Network of Judges meetings in Bergen and Riga. We tried to be experimental and organise an on-line forum – in Portugal judges have a closed Facebook Page – but the rest of the European judiciarty were not quite ready for this!

Prof Erika Szyszczak

Professor  of Law

E.Szyszczak@sussex.ac.uk