6 - The Shaping of EU Competition Law: Past and Prospects

Summary

The findings of Part II show that some patterns can be identified in the behaviour of the European Commission. The authority displays a preference for rules over standards. This behaviour is in line with what could be expected given its role and features. Importantly, the behaviour does not appear to be the manifestation of its understanding of the discipline at a given point in time, as it has been consistently displayed over the years. With the adoption of Regulation 1/2003, the patterns can be observed in new and/or different institutional settings – namely in the context of preliminary references and commitment decisions. Second, the findings of Part II suggest that claims of undue deference by the EU courts may not be justified. It appears, at the same time, that the scrutiny of administrative action has not always been consistent. Several factors appear to influence the intensity of judicial review. In particular, the EU courts are more willing to depart from the legal framework set out in a decision where it goes against consensus positions. Against this background, some hallmarks of effective review can be identified.