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Courts may dodge binding enforcement decisions

March 29, 2017, Global Competition Review

Elaine Whiteford was a panelist at GCR Live Cartels and is quoted by Global Competition Review in an article regarding ways in which EU member state judges could avoid provisions in the EU’s Damages Directive. Whiteford said European Commission and EU member state enforcers’ decisions being binding on courts is a phrase that “trips very easily off the tongue – but what does it actually mean?” Exactly what parts of decisions are binding is unclear, she said, as statements from courts suggest they will consider the operative parts of infringement decisions to be binding, along with any parts of the decision’s reasoning that are necessary underpinnings to those operative parts. 

“So what does that mean? Nobody has any real kind of idea,” Whiteford said. “There are a whole number of ways that national courts are going to be able to…use these sorts of principles to evade decisions of regulators that they simply don’t like.”

Whiteford added that it is “all very well” when courts deal with decisions issued by well-respected enforcers such as Germany’s Federal Cartel Office – but that it would be “unrealistic” to expect the same amount of respect would be granted to less established competition authorities.


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