Legitimacy in EC Cartel Control

Abstract: This thesis explores the role of legitimacy in EC competition law, as regards the enforcement policy related to cartel control. Legitimacy can be understood to presuppose two things; that the law rests on rational foundations, and that average compliance can be ensured. Legitimacy must be distinguished from legality. By and large there is seldom any reason to question that the law has been adopted in accordance with applicable constitutional principles. Legitimacy on the other hand is a more profound question; whether the law corresponds to deeper notions in society.The research has demonstrated that a prohibition against cartels is legitimate and that it is justified to spend scarce public resources combating cartels. On substantive law, procedure and evidentiary standards, the indication is that EC law is legitimate. When it comes to cartel fines however, the findings indicate shortcomings in the European Commission’s historic and present policies. On average compliance finally, the system with decentralised enforcement in the EU cannot be expected to be efficient, as a result of the fragmented enforcement structure with 28 competition authorities (one in each Member State plus the Commission). The thesis demonstrates the great complexity of the law, questioning whether it is likely that 28 efficient enforcers can be built up and maintained in a sustainable way in the EU. The Community Courts are addressing the legitimacy concern in their judgments, although the efforts could be more systematic and elaborate. A general conclusion is how references to economics and to US antitrust law could be used more actively by the Community Courts to provide legitimacy, in combination with an open dialogue on the theories underpinning cartel control.