Transforming Shields into Swords: The Vebic Judgment,Adequate Judicial Protection Standards and the Emergence of Procedural Heteronomy in EU Law

Abstract

The Court of Justice's VEBIC judgment obliges national competition authorities to be involved in appellate judicial proceedings against a decision they adopted, even when these authorities act as first instance judges in adopting those decisions. The judgment significantly diminishes Member States' autonomy in the organization of competition law enforcement. It also affects the scope of the general principle of national procedural autonomy. Rather than simply relying on the classical procedural autonomy test, VEBIC demonstrates a preference for judicial protection standards aimed at assessing the adequateness of national procedural rules. These standards, at first sight, facilitate procedural law convergence, but their potentially unbridled application also enables the unaccountable widening of EU involvement in national procedural systems and ensuing critiques of judicial activism. This article therefore proposes a framework of understanding based on procedural heteronomy to structure the Court's adoption of procedural standards. Procedural heteronomy delineates the Court's potentially new stance in procedural law and structures it within a more general procedural ius commune framework that favours the coexistence of and interaction among EU and national standards of adequate procedure.