Tuesday, July 14, 2009
Posted by D. Daniel Sokol
Bo Vesterdorf (Herbert Smith and Plesner) asks The Court of Justice and Unlimited Jurisdiction: What Does it Mean in Practice?
ABSTRACT: The principal function of the Community Courts, the Court of Justice (“ECJ”) and the Court of First Instance (“CFI”) is to ensure that in the interpretation and application of the Treaty (and secondary EC law) the law is observed (Article 220EC). The primary role of the Community Courts in this respect, including in the competition field, is judicial review of the legality of acts of the Community institutions (Article 230) which can result in a confirmation, or total or partial annulment of the challenged act in question. In this respect, the Courts therefore act as judicial review courts and not as courts of full appellate jurisdiction with the power to adopt decisions on the merits of the case themselves.
There is one area, however, where the Community Courts do enjoy full jurisdiction. Article 229EC provides that the Community Courts may, by Regulation, be given unlimited jurisdiction as regards sanctions decided under the Regulation in question. In the competition field, with regard to fines imposed by the Commission as sanctions for infringement of the competition rules, this has been done by Art. 31 of Regulation 1/2003. According to Article 31 the unlimited jurisdiction empowers the Community Courts to annul, reduce, or increase the fine in question. It is important to note that under Article 31 it is not a condition for the exercise of those powers that the Court has found errors as to the substance or merits of the case nor as regards the way in which, or the level at which, the Commission has set the fine.
To what extent, then, is this unlimited jurisdiction exercised by the ECJ or the CFI in practice?