Evidence-Based Legislation in EU Competition Law

Abstract

Whereas the European Commission's Better Regulation Agenda advances a broad standard for evidence in legislation, EU competition law more narrowly relies on economic evidence focused on welfare effects. This article explores this inherent tension by means of a case study of the 2018-2022 revision of the Vertical Block Exemption Regulation (VBER). It is found that economic evidence has been only one of many sources of evidence in the VBER revision process, which put particular attention on evidence through stakeholder consultation. This is understandable within the context of the Better Regulation Agenda, but nonetheless striking when considering EU competition law's reliance on economic evidence over non-economic evidence under the Commission's 'More Economic Approach'. Moreover, it is unclear why economic evidence was gathered to evaluate some aspects of the VBER and not on others. Furthermore, the Commission has been strategic in drawing conclusions from economic research and, considering the limitations thereof, seemingly based on its predefined preference for specific policy options.