The Capacity Building Training (co-organized with the Balanced Economy Project and ARTICLE19.org) brought together about 20 different CSOs from all over Europe, academics, enforcers and policy makers from EU and national competition authorities. Through various interactive sessions, we discussed core substantive and procedural issues of competition law that are increasingly relevant for CSOs, such as sustainability and climate change, digital rights and their participation in decision-making processes and policy making.

Through various interactive sessions, we discussed core substantive and procedural issues of competition law that are increasingly relevant for CSOs, such as sustainability and climate change, digital rights and their participation in decision-making processes and policy making.

The training was designed on the basis of the idea that CSOs not only need knowledge about the substantive and procedural competition rules but also specific skills and tools in order to articulate their interests and to do their work competently.  As such the training was to enable CSOs to position their interests in the competition law framework, to realize their strategic objectives and design their possible course of actions in this legal framework.

Civil society communicates social needs to the public sphere and one of its democratic functions is to provide information and expertise otherwise unapproachable to policymakers and regulators. In the EU, since the White Paper on European Governance in 2001, the participation of civil society has been seen as a way to improve the efficiency and legitimacy of EU governance. EU competition law is a core pillar of the EU’s economic governance and an exclusive competence of the Union, where the European Parliament has limited legislative powers. Therefore, the legitimacy of decision-making in this policy field and the participation of civil society are equally important. Competition law increasingly needs to address complex societal issues beyond narrowly framed consumer interests. Digital data driven markets, for example, raise questions related to the exploitation of individuals’ economic (consumer) rights as well as fundamental data protection rights (citizen). Similarly, climate change and sustainability initiatives are analyzed and discussed in competition law through the lens of citizen welfare now and in the future. Such initiatives can only be approved if they significantly contribute to provide fair share of the benefits to  current and future generations of citizens. In both areas citizen experiences constitute a value of citizen participation. However, maximizing citizen welfare cannot be produced on the basis of technical expertise without deliberation from CSOs.

One particular and reoccurring theme of the discussions was the need for CSOs to voice their interests towards competition and other regulatory authorities, policy and law makers. However, the technical nature of competition law and the inaccessible expert discourses limit civil society’s participation in policy and decision-making. The technical (economics) language of competition law tend to produce technical discourses and tend to be open to those who can provide such technical information. This creates a mismatch between CSOs and competition authorities and limit participation to those actors  who can provide technical expertise.  CSOs are non-experts and lack fluency  in the language and methodology of competition law and economics. Therefore, they cannot challenge dominant expert discourses.

The legal avenues for participating in decision-making differs greatly across the EU. There are diverging ways in national and EU competition law procedures for CSOs to participate in decision-making of the competition authority as complainants or third parties. Depending on broader or narrower legal standing of CSOs as third parties defines or limits the possibility for judicial review. This in turn results in different degree of protection of CSOs’ and citizens’ economic or non-economic interests.Due to insufficient citizen participation competition law and policy suffers from procedural legitimacy, which cannot be remedied by output legitimacy, namely that competition law has as its goal to maximize consumer welfare.

By contributing to transparent and participatory decision-making CSOs could fill the legitimacy gap that exist in modern bureaucratic states and national or international organizations such as competition authorities.

Competition law and policy must resonate with public interest and societal needs in order to be legitimate and CSOs are crucial partners to achieve this authority and urge regulators to be receptive to arguments about impact on human rights or social impact beyond market impact.

Future trainings will, therefore, remain focused on building CSOs’ capacity by broadening CSOs’ portfolio of cases and strengthen their advocacy work when facing and addressing governments, national parliaments as well as international organisations.