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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

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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.

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