Wednesday, September 19, 2012
Posted by D. Daniel Sokol
Heike Schweitzer, University of Mannheim offers thoughts on Judicial Review in EU Competition Law.
ABSTRACT: A principled and well-functioning regime of judicial review is a fundamental part of the European Union’s commitment to the rule of law, and of particular relevance in the field of EU competition law: The EU Commission has become one of the most powerful competition authorities worldwide, combining investigative, prosecutorial and decision-making powers. The risk of a prosecutorial bias is an obvious corollary of such an institutional design. Apart from procedural guarantees during the administrative proceedings, it must be countered by a strong and efficient regime of judicial review.
This chapter reviews the existing framework of judicial review in EU competition law cases in light of this challenge. It discusses its functions, its legal basis, and the actual practice of judicial review both with a view to regime of legality control of the Commission’s infringement and merger decisions and with a view to the courts’ unlimited jurisdiction regarding fines. In light of recent jurisprudence by the ECJ and the ECtHR, the paper explores whether the standards for effective judicial review established by Art. 6(1) ECHR and Art. 47 of the Charter of Fundamental rights are met. The paper argues that, overall, the ECJ has managed to establish a coherent and stringent regime of judicial review across all areas of substantive competition law that takes full account of the need to protect individual rights. This evolution has not been hindered by the courts’ “margin of appreciation” rhetoric. Yet, this language has become highly imprecise and needs to be reconceptualised: In fact, the Commission does not possess any margin of discretion that is beyond judicial review with regard to the interpretation and application of substantive competition law. In defining markets, measuring market shares or establishing cost standards in the context of price-based abuses, it does have a right to make the initial methodological choices. These choices are, however, subject to full judicial review regarding their adequacy and appropriateness. If this is true, the “more economic approach” has not, and must not lead to a weakening of judicial review. Among the most important challenges still to be met by the European courts is the need to ensure sufficiently intense judicial control also with a view to commitment decisions and soft-law rule-making powers that the Commission de facto assumes.