The development of this collection has been no mean feat, and we are very pleased to celebrate it with you. You have had a long and illustrious career: you were called to the Scottish Bar in 1972, represented parties including Microsoft in its famous 2007 tying case before the EU Court of First Instance, and served on the General Court from 2015 to 2020 before re-entering private practice and arbitration. Few are as well placed to understand the European courts. Yet you once lightheartedly described a competition appeal to the General Court as an ‘undercooked vast slab of meaty material.’ Could you explain what you meant by that, and whether there has been any progress on the menu?
In a democracy, the availability of judicial review is a vital element in legitimising administrative action. The official / civil servant / regulator / administration is entrusted with the responsibility of applying the law fairly, intelligently, consistently. We trust the officials to do a good job, but everyone knows that a court may be asked to second-guess the decision. That is wholesome quality control. The decision will be based partly on the facts as established and partly on the law. Successive instances of appeal trim the extraneous minor disputes and leave the big points more visible.
A first instance decision is more challenging to review than an appellate one. When a trademark dispute comes to the General Court, the dispute has been focussed by review procedures within the Trademark Office in Alicante. The points in dispute are clear. The rules about confusing similarity are established and can be applied. This -pardon the gastronomic metaphor – is a task like consuming a croque-monsieur or a small burger.
By contrast, when a big competition case is being decided, there are dozens of factual points in dispute, plus access to the file, plus right to be heard, plus expert opinions. The decision is the fruit of (typically) years of enquiry, correspondence, meetings, likely a formal hearing, and a great deal of controversy. The decision may be 500 paragraphs long, or more. The application to the court must be filed in about ten weeks.
The Commission team worries that the decision might be criticised for not addressing one (maybe minor) point, so every issue gets rebutted thoroughly. The accused company wants to challenge everything: perfectly understandable. But, when the application arrives at the Court, it is not a dainty dish. It is more like half a cow than a neat hamburger (other images would no doubt be preferable). Nils Wahl first suggested an administrative appellate step in Brussels to prune some of the minor disputes and thereby to help the court focus on the big issues of principle. That would mean yet more delay, yet more procedures, but maybe the advantage of reducing the issues in dispute might be worth considering.
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