Teresa Ribera assumed the role of EU Commissioner for Competition just a couple of weeks ago on December 1, 2024. As a new chapter in EU competition law begins, Janneke Parrish and I present an empirical analysis of Margrethe Vestager’s two mandates.[1] Our objectives are twofold: (1) to provide access to data for the (newly) appointed DG Comp leadership, researchers, and other competition agencies interested in assessing the successes and setbacks of the past eight years before the CJEU; and (2) to offer an initial analysis of the key patterns emerging from our dataset.
1. Keeping score of Margrethe Vestager’s successes and failures
Over her two terms leading DG Comp, Margrethe Vestager oversaw the adoption of 99 decisions on antitrust and cartels, 3,869 on mergers, and 5,473 on state aid.
During the same period, 241 of these decisions were brought before the CJEU. Specifically, the CJEU reviewed 96 cases exclusively related to Article 101 TFEU, including 25 decisions issued under her leadership, along with 11 cases solely concerning Article 102, 8 of which were published during her tenure. Additionally, 15 cases involved both Articles 101 and 102, with 2 issued while she was in office. The court also reviewed 111 state aid cases and only 7 merger-related cases, 4 of which were decided during her term.
50 of DG Comp’s decisions were (at least partially) overruled by the Court during her two terms.
2. Key patterns in CJEU antitrust cases
The study of the 50 cases in which the CJEU (at least partially) overruled the Commission produces two kinds of findings, both quantitative and qualitative.
On the quantitative side, we provide granular statistics as to the subject matter concerned by the CJEU rulings (i.e., antitrust, merger, state aid), whether the decision was first issued by Alumnia or Vestager, whether the CJEU overruled DG Comp based on a substantial and procedural basis, etc. Some of the most striking insights include:
- 47% of the antitrust decisions first issued under Margrethe Vestager’s leadership have been at least partially overruled by the CJEU upon reaching the Court, with more cases likely to follow.
- When antitrust cases reach a judgment, the legal service representing the European Commission loses 24.6% of DG Comp’s antitrust decisions over this period.
- The CJEU overturned only one of DG Comp’s decisions on Article 102 over this period. None of the decisions initiated by Margrethe Vestager under Article 102 has been overruled by the CJEU to date.
- In merger control, only seven cases reached the CJEU during her two mandates, with just two overturned—representing 0.05% of the merger decisions she issued.
On the qualitative side, we find (among other things) that:
- The antitrust cases that Margrethe Vestager lost on substantive grounds during her tenure were largely tied to disputes over economic assessments.
- The European Commission faced only four antitrust defeats related to fine calculations, suggesting that the judiciary generally upheld its methodology for determining fines.
- No antitrust case was lost due to the introduction of new theories of harm, which may indicate that the Commission exercised caution in pursuing such cases or that the courts were more open to novel arguments than commonly assumed.
- Procedural defeats in antitrust cases primarily stemmed from breaches of defendants’ rights during investigations, discrepancies between statements of objections and final rulings, and procedural flaws in information requests and inspections.
- In state aid cases, most of DG Comp’s losses were due to substantive issues. A considerable number of these cases centered on whether the practice in question was materially significant, particularly when broad interpretations of concepts like “interested party” or tax advantages qualifying as state aid were challenged.
All in all, our study highlights where DG Comp has strong showings before the CJEU, where it can be more daring, and where companies have a chance of success when challenging decisions.
Retrospective studies, as long documented by Bill Kovacic and others, are an essential piece of the antitrust puzzle. They help shape the future of enforcement and policymaking. Given the limited scope and inherent limitations of our paper, we call for more studies of this kind to strengthen EU competition law and, where needed, adjust its course.
Thibault Schrepel
Citation: Schrepel, T. and Parrish, J., 2025. Mapping Reversals: An Empirical Account of Margrethe Vestager’s Track Record Before the Court of Justice of the European Union. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5130185
