Simon Holmes

As I write this the world is gathering in Glasgow, UK, for the most important international conference in recent years — COP 26. This comes at the end of a year in which 100s have died from floods in counties as far apart as Belgium and China, and others from Greece and Turkey to the west coast of North America have suffered record (and lethal) heat and wildfires. Neither this bulletin, nor this foreword, is about climate change as such but, before we dive into our technical competition law (or economics) bubble, it’s important to remind ourselves of the context in which we are looking at sustainability and competition policy – and retain some perspective. This is not just another interesting and technical aspect of competition law but something which has a bearing on the most important issue facing humanity — the existential threat that climate change poses.

Decisions of the Commission are reviewable for their legality under Article 263 of the Treaty on the Functioning of the European Union (“TFEU”). It is not necessary to set out the full range of decisions that are capable of challenge under Article 263 TFEU, but they include (purely by way of example) decisions concerning infringements of Article 101 TFEU (anti-competitive agreements) and 102 TFEU (abuse of dominance) and decisions regarding mergers. One of the more important bases for the challenge of Commission decisions is the failure to respect the “rights of the defence”.This foreword seeks to explore the recent EU case-law in this area. It does so in a comparative law fashion, comparing the EU approach with the (in formal terms different, but in substantive terms, similar) approach in the UK.