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On Government, Governance and Judicial Review: The Case of European Competition Policy

abstract From a traditional rationalist principal-agent framework, the development of the European Community’s competition policy could appear as a straightforward story of agency loss. However, the recent overhaul of competition policy, which the Community presented in terms of decentralisation, appears to have changed the story. We are confronted with the uncommon event of an agent (the European Commission) returning some of its powers to the principals (the member states). This paper resolves the puzzle by highlighting the role of the Commission and of European courts. It has become part of the Commission’s strategy to pursue its objectives through legally non-binding instruments such as notices or guidelines or co-operation in networks. These instruments do not need the approval of the Council of Ministers or the European Parliament. With the Commission’s promotion of new modes of governance, the link between sectoral governance (in terms of regulation specific to competition policy) and the governmental shadow of hierarchy shifted to an increasing extent to judicial review by European courts. Alongside this shift, the character of judicial review has changed in the direction of judicial control, as European courts no longer restrict themselves to review of the legality of Commission actions, but also engage in assessing the facts themselves.
   
type journal paper
   
keywords
   
language English
kind of paper journal article
date of appearance 29-11-2008
journal Journal of Public Policy
publisher Cambridge Univ. Press (Cambridge)
ISSN 0143-814X
ISSN (online) 1469-7815
DOI 10.1017/S0143814X08000810
volume of journal 28
number of issue 1
page(s) 139-159
review external review
   
citation Lehmkuhl, D. (2008). On Government, Governance and Judicial Review: The Case of European Competition Policy. Journal of Public Policy, 28(1), 139-159, DOI:10.1017/S0143814X08000810.