Transforming Shields into Swords: The Vebic Judgment, Adequate Judicial Protection Standards and the Emergence of Procedural Heteronomy in EU Law

DOI10.1177/1023263X1101800407
AuthorPieter Van Cleynenbreugel
Publication Date01 Dec 2011
originalSourceSummaryThe Court of Justice's VEBIC judgment obliges national competition authorities to be involved in appellate judicial proceedings against a decision they adopted, even when these authorities act as first instance judges in adopting those decisions. The judgment significantly diminishes Member States' autonomy in the organization of competition law enforcement. It also affects the scope of the general principle of national procedural autonomy. Rather than simply relying on the classical procedural autonomy test, VEBIC demonstrates a preference for judicial protection standards aimed at assessing the adequateness of national procedural rules. These standards, at first sight, facilitate procedural law convergence, but their potentially unbridled application also enables the unaccountable widening of EU involvement in national procedural systems and ensuing critiques of judicial activism. This article therefore proposes a framework of understanding based on procedural heteronomy to structure the Court's adoption of procedural standards. Procedural heteronomy delineates the Court's potentially new stance in procedural law and structures it within a more general procedural ius commune framework that favours the coexistence of and interaction among EU and national standards of adequate procedure.
SubjectArticle
18 MJ 4 (2011) 511
TRANSFORMING SHIELDS INTO SWORDS:
THE VEBIC JUDGMENT, ADEQUATE
JUDICIAL PROTECTION STANDARDS
AND THE EMERGENCE OF PROCEDURAL
HETERONOMY IN EU LAW
P V C*1
ABSTRACT
e Court of Justice’s VEBIC judgment obliges national competition authorities to be
involved in appellate judicial proceedings against a decision they adopted, even when
these authorities act a s rst instance judges in adopting those decisions. e judgment
signicantly diminishes Member States’ autonomy in the organization of competition
law enforcement. It also aects the scope of the general principle of national procedural
autonomy. Rather than simply relying on the classical procedural autonomy test,
VEBIC demonstrates a preference for judicial protection standards aimed at assessing
the adequateness of national procedural rules. ese standards, at rst sight, facilitate
procedural law convergence, but their potentially unbridled application also enables the
unaccountable widening of EU involvement in national procedural systems and ensuing
critiques of judicial a ctivism. is article there fore proposes a framework of understanding
based on procedural heteronomy to str ucture the Court’s adoption of procedural standard s.
Procedural heteronomy delineates the C ourt’s potentially new stance in procedural law and
structures it within a more gene ral procedural ius commune framework that favours the
coexistence of and interac tion among EU and national standards of adequate procedure.
Keywords: eective judicial protect ion; ius commune; national procedura l autonomy;
procedura l standards ; VEBIC (C-4 39/08)
* Fellow Research Fou ndation Flande rs, Centre for a Common L aw of Europe, Universit y of
Leuven, Facult y of Law. LL.M. (Har vard Universit y); LL.B., LL.M . (University of Leuven) piete r.
vancleynenbreugel@law.ku leuven.be.
Pieter Van Cleynenbreugel
512 18 MJ 4 (2011)
§1. INTRODUCTION
It is well known that the judicial application of EU law largely remains t he province of
the Member States’ procedural sys tems, and is supplemented by principles guaranteeing
the application of EU law.1 e scope of interaction between EU principles and nationa l
procedural law has trad itionally been approached throug h the lenses of national
procedural autonomy and the accompanyi ng principle of eective judicial protection.
Evolution in recent case law questions, more profoundly than ever before, t he viability
of the national procedural autonomy approach as a framework for understanding
EU national procedural relationsh ips. is contribution explores the extent to which
discussion of procedural autonomy cannot account for the developments in recent case
law and proposes an alternative f ramework of understanding. It does so by analy sing the
CJEU’s (Court of Justice of the European Union) VEBIC judg ment2 and its impact on the
principles of national procedural autonomy and eect ive judicial protection.
Following a succinct analysis of the Advocate General ’s Opinion and the Court’s
judgment, it situates VEBIC within the bo dy of case law on national procedural autonomy.
VEBIC aec ts national procedural autonomy and eective judicial protection in t wo
dierent but interrelated ways. On the one hand, it reduces t he scope of Member States’
freedom to organize their national competition authorities i n the specic procedura l
context of decentraliz ation of competition law. On the other hand, the Court’s argu ment
implicitly and potential ly extends the scope of the pri nciple of eective judicial protection,
and as such, could provide the grou ndwork for a new approach towards assessing national
procedural rules. at new approach – identied as an adequate judicia l protection
standards approach – would al low the Court to intervene more di rectly in national
procedural sett ings and could provide an important trigger for developing a procedu ral
ius commune.
At the same time, however, the adequate judicial protec tion standards approach
potentially endangers t he CJEU’s legitimacy, as it invites more active – and therefore
activist – approaches to judicia l lawmaking at the expense of national procedural law
frameworks in which judges have been educated. With a view to mitigat ing judicial
activism concerns in adequate judicial protection sta ndards case law, this ar ticle
reconciles cla ssical national procedura l autonomy and post-VEBIC adequate judicial
protection standards arguments into a procedural heteronomy fra mework. Procedural
heteronomy continues to support the distinc tive features of national procedura l laws,
but equally encapsulates t he eectiveness of a common European judicial space , and the
need for adequate national procedural r ules as constituent elements of that space.
1 J. Goyder, ‘“VEBIC”: e Role of National Authorit ies in Appeal s against thei r own Decisions’, 2 Journal
of European Compet ition Law & Practice 3 (2011), p.238.
2 Case C-439/08 VEBIC , Judgment of the Cou rt of 7December 2010, not yet reported .
18 MJ 4 (2011) 513
Transforming Sh ields into Swords
is contribution argues t hat the procedural heteronomy fra mework underlying
VEBIC could provide a legitimate basis for the development of adequate judicial
protection standards acros s the EU that support and alter national procedural r ules. At
the same time, t hat approach should be wary of its ow n limits. Uncovering these limits
allows one to frame and avoid critiques of judicial activism otherwise att ributed to the
Court of Justice of the Europea n Union.
§2. THE VEBIC JUDGMENT
A. FACTUAL BACKGROUND AND NATIONAL PROCEDURE
VEBIC addresses ‘the extent to which national competition authorities may intervene
before national courts where the lat ter are applying the competition law of the European
Uni on ’.3 More generally, it questions the ex tent to which national rst instance
administrative judges should be parties to appel late proceedings agai nst their own
decisions, and how far the Europea n Union can go in imposing pa rticular institutional
or procedural requirements on national proce dural law systems.
e facts of the case ca n be summariz ed as follows. VEBIC4 was (and still is) a
Belgian non-prot association set up to represent the interest s of bakers and art isanal
confectioners. At the time of t he dispute, its activities consisted mainly of compili ng
and distributi ng information about prices for artisana l bakery products. ese products’
prices were formerly regulated by law, but had been liberalized in 2004. V EBIC’s price
distribution activities did not, however, serve an exclusively informationa l purpose. In
distributing a price i ndex, VEBIC apparently monitored the extent to which its members
(local associat ions to which bakers and ar tisanal confectioners could voluntarily
subscribe) respected its own proposed price increa ses.
e Belgia n competition invest igative authorit y (College of Competition Prosecutors
or Auditoraat), part of the national competition authority (the Belgian C ompetition
Council), commenced an inquir y into VEBIC’s activities and submitted a report to the
Belgian Competition Council. e report clai med that the index schemes const ituted
price xing deci sions of an association of under takings that infri nged the 2006 Belgian
Law on the Protection of Economic Competit ion (LPEC).5 On the basis of national law,
the Auditoraat proposed to ne VEBIC.6 Having invited VEBIC to submit comments
3 Opinion of Advocate Genera l Mengozzi in Case C-4 39/08 VEBIC, delivered on 25Ma rch 2010, not yet
reported, para. 46.
4 VEBIC stands for ‘Flemi sh Association of Ba kers and Confect ioners, Ice-Cream Ma kers and Chocolate
Makers’, see ww w.vebic.be (last visited 21Octobe r 2011).
5 Loi sur la protection de la c oncurrence économique, co ordonnée le 15septembre 2006, Belgian Ocial
Journal 29September 200 6, p.50613.
6 Opinion of Advocate Genera l Mengozzi in Case C-4 39/08 VEBIC, para. 18–23; Cas e C-439/08 VEBIC,
para . 24–33.

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