Volume 45 (2008)

Volume 45 (2008) / Issue 4

Eric Barbier De La Serre, Anne-Lise Sibony, 'Expert evidence before the EC courts' (2008) 45 Common Market Law Review, Issue 4, pp. 941–985

Abstract

The EC courts are regularly asked to rule on complex scientific and technical matters, as illustrated by cases concerning the foot–and–mouth crisis or conglomerate effects in merger control. In order to apprehend these technical issues, the EC courts may, like any other court, rely on experts who are appointed either by the courts themselves or by the parties. However, the law on the use of expert evidence by the EC courts is unclear on many aspects. The purpose of this article is therefore to set out briefly the law on expert evidence, to explore how the EC courts use it and to assess whether improvements are desirable.

Section 2 of this article describes how the EC courts use “neutral” expert evidence (i.e., evidence obtained through an expert’s report commissioned by the court). An analysis of the case law reveals a paradox: while the status of neutral expert evidence is clearly defined by the rules of procedure governing the EC courts, such evidence is rarely used in practice. Section 2 therefore also endeavours to explain why the use of neutral expert evidence remains exceptional. Section 3 focuses on how the EC courts use “partisan” expert evidence (i.e., expert evidence that is voluntarily submitted by the parties). It shows that partisan expert evidence is the mirror image of neutral expert evidence: while its procedural status is unclear, it is widely used before the EC courts. Finally, in Section 4, it is argued that this situation is not wholly satisfactory. It is submitted inter alia that there is no convincing justification for systematic self–restraint over technical issues. Some changes are therefore explored which could be contemplated in order to improve the use of expert evidence by the EC courts.

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ISSN: 0165-0750
ID: COLA2008069