Discovery, transparency and antitrust enforcement.

EU Law Web Log has an important story about a European Court of First Instance case. It's probably one mainly for the legal junkies but has important knock on effects for private actions against large organisations.

An Austrian consumer advocacy group asked the Commission for access to documents regarding their 2002 ruling that 8 Austrian banks operated a cartel prohibited by EU regulations. They wanted these details to re-enforce a case against one of the banks which they were pursuing through the Austrian courts. The Commission, as is the first reaction of many administrators, refused access to the documents. The Court of first instance, however, has just ruled that they were wrong to do so and ordered them to hand over the documents.

The more I hear about the actual operation of the European Commission, the more concerned I become about how many general sound governing principles can be overlooked or deliberately compromised in its day to day operations.

It's not primarily that officials set out with the intent of undermining principles - most of them would be horrified at the thought that they might be doing so. But in any complex administrative infrastructure (i.e. this is not exclusive to the EU and will also apply to any large commercial organisation) billions of activities have to take place at the microscopic day to day level and people administer and work with these [organisationally] microscopic activities in ways that enable them to do their day to day jobs.

The trouble is that collections of organisationally systematic, logical and sensible activities/or decisions within the context of those microscopic systems can add to to macroscopic systemic chaos for the organisation as a whole. This is compounded by the fact that many of the administrative systems are contradictory and mutually exclusive or incompatible and yet officials are still obliged to somehow make them work. Remarkably they usually manage this with commendable ingenuity and efficiency because people are very clever at finding practical ways to make systems work...

But you end up, as in this instance, with the European Commissioner declaring that the Commission sees private litigation as a key complement of public enforcement of EU competition rules, and yet when someone does pursue such private litigation, Commission officials refuse to cooperate and release key information for pursuing the case; and these officials have logical and defensible reasons within the context of their own work practices and systems for refusing to disclose the documents.

The consumer organisation are then forced into further litigation at a European level to get access to documents the Commissioner has implicitly suggested that should have been available to them as a matter of principle.

I see parallels here with degree to which professionals can set thinking traps within the context of their own professions. It might seem perfectly reasonable, for example, to a group of intellectual property lawyers that a colleague sends out a cease and desist letter warning someone that they should not use their own name because it happens to be the same name as a famous client she represents. If IP rules are written in such as way as to allow her to do this then she is acting perfectly reasonably within the context of those rules to protect the interests of her client. Most ordinary folks, however, would think it completely ridiculous that someone could be sued for using their own name.

There's probably an academic paper, if not a book, in this line of thought but I'll leave it there for the moment!