Koncepcja powściągliwości sądowej w prawie ochrony konkurencji

The article presents the concept of judicial deference in the context of competition law – the area of law where economic expertise is important and where administrative authorities play a major role. It argues that the concept of judicial deference is not about imposing limits on the scope of judicial review; it is only after courts have exercised effective review that they may defer to the conclusion reached by the administrative authority, even if alternative one exists. At the same time, the article posits that judicial deference may be considered permissible only if conditions related to fairness of administrative proceedings, impartiality of the administrative decision-maker and the latter’s expertise are met. The article analyses the areas of competition authorities’ findings where the concept of judicial deference may be of potential relevance. The following areas are covered: interpreting the law, factual findings, complex economic assessment, fining, and discretionary choices. The article also examines the systems of enforcement of competition law in the EU, Poland and in the US, and discusses whether the conditions which make courts’ deferential approach permissible are present in these systems. The author concludes that the areas of complex economic assessment and fining are particularly fit for the deferential style of review. When it comes to judicial deference conditions, they are found to be present in the US (judicial review of Federal Trade Commission’s decisions) and to some extent in the EU. In this vein, the article calls for improvements regarding the fairness, impartiality and expert character of the enforcement of competition law in Poland and in the EU.