Chapter 4 - Economic Evidence in Competition Law: The Experience from a National Administrative Court

Summary

INTRODUCTION

In this contribution it will be argued that the way judges handle economic evidence very much depends on the institutional context. In the first paragraph, a number of relevant factors concerning this context will be discussed. In the second paragraph, the focus is on a number of common misperceptions among economic experts advising at a national court. In the third paragraph, a number of observations will be made about how judges handle economic evidence. In the fourth paragraph, it will be explained why, in spite of possible miscommunications between judges and economic experts, economic evidence often plays an unavoidable role in court proceedings. This will be followed by paragraph 5 in which a number of examples will be given and paragraph 6 in which a conclusion will be drawn.

It should be clear in advance, that this contribution is written from a particular institutional context – an administrative higher court, where all judges have had a legal education, but may have some economic background as well – and that the conclusions drawn may not hold in other contexts. Nevertheless, the conclusion will be a positive one: improvement is always possible, but administrative may be quite able to work with economic evidence.

THE INSTITUTIONAL CONTEXT

How do judges handle economic evidence? It should be obvious that the answer to this question depends on the institutional context the judge is working in. This contribution draws on ten years of experience in the Dutch Court of Appeal for Trade and Industry (College van Beroep voor het bedrijfsleven). It is the highest administrative court in the Netherlands dealing with economic administrative law, such as energy law, competition law, and telecommunications law. The last ten years the use of economic evidence took a flight, not only in competition law, but in particular in energy law due to the introduction of the so-called method decisions regulating natural monopolies in the distribution of electricity and gas, and in telecommunications law due to the introduction of market analyses covering parts of the telecommunications market.