Previous business/academic article Next business/academic article
Academic Articles Awards > Procedure

McWane and Judicial Review of Federal Trade Commission Decisions - Any Inspirations for EU Competition Law?

Maciej Bernatt, 38(6) European Competition Law Review 288, 2017

See Maciej Bernatt's resume

Vote for this articleHelp

* Average
** Interesting
*** Good
**** Excellent
***** Must receive an Award!

Please note that the star(s) appearing on the article page before you have voted reflect the status of all votes registered to date.

Readers’ vote will close on February 9, 2018. Readers’ vote will allow you to nominate 1 article for each of the Awards, i.e., 10 Academic articles, 10 Business articles, and the best Soft Laws. The readers’ short-list of Academic and Business Articles will be communicated to the Board together with the 20 articles nominated by the Steering Committees. The Board will decide on the award-winning articles. Results will be announced at the Awards ceremony to take place in Washington DC on the eve of the ABA Antitrust Spring Meeting on April 10, 2018.

Click here to read the full article online

The article studies how intensively the administrative decisions of the European Commission’s counterpart - the U.S. Federal Trade Commission (FTC) - are reviewed by the U.S. Circuit Courts of Appeal. The standard used by the U.S. courts to review FTC factual and economic findings, known as the ‘substantial evidence test’ is examined. The main question is whether such a standard enables both effective and yet deferential review. An examination of U.S. case-law, and in particular of the McWane exclusive dealing case, promotes the view that the U.S. ‘substantial evidence test’ can be an inspiration for the improvement of judicial review in EU competition law. It enables a thorough review of the administrative decision, while at the same time leaving a space for deference to the FTC’s factual and economic findings (especially when two alternative conclusions can be reached based on the same facts). It seems to adequately balance the need for effective judicial review (required in the European context by Article 6 ECHR) with the need for expertise, and the inter-institutional balance in competition law. In addition, the institutional and procedural characteristics of the administrative proceedings before the FTC may serve as a point of reference with respect to improvement of due process and institutional impartiality in proceedings before the European Commission.

Download our brochure