The Lawfulness and Acceptability of Enforcement of ... - Stibbe

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2011). the actually carries out a review. What constitutes a manifest error of assessment for opinion that the use of a formula does not say much about how a judicial body formula was applied, for instance, in the Microsoft judgment). We are further of the Justice stayed away from the formula using the ‘manifest error of assessment’ (the 582 WORLD COMPETITION a relative concept. M. Jaeger seems to hold the same view In his response to the one judge does not necessarily constitute the same for another judge: ‘manifest’ is criticism against the judicial deference for the Commission, he argues, in reference this purpose. He rather regards the formula for the manifest error of assessment as exclude an in-depth review and that economic studies and evidence are used for to the Tetra Lwal case, that the formula for a manifest error of assessment does not a reference to the division of duties between the Commission as policymaker and the Court ofJustice and General Court as review bodies.” review; we submit that both the EctHR and the Court of Justice require a thorough review of the facts on which fining decisions are based and that the and not in light of general policy rules. As such, the Commission and the General appropriateness of the sanction is assessed in light of the specific facts of the case so may imply an infringement ofArticle 6 ECHR and Article 47 of the Charter. own motion and the General Court at the request of the applicant. A refusal to do Court are forced to involve themselves with the facts — certain substantive concepts from European competition law are currently applied, and extensive judicial review may eventually conflict with the manner in which as well as how the fines for cartel infringements are calculated. Justice has systematically opted for broadly formulated definitions of the 3 FORMAL CONCEPTS, PRESUMPTIONS AND AJ3STRACT FINE 3.1 A MORE ECONOMIC AND FOCUSED ENFORCEMENT POLICY are interpreted narrowly. The same applies to Article 101 TFEU. The Court of Under the Treaties, prohibitions are generally interpreted broadly, while exceptions conditions for applying this provision) CALCULATIONS Regardless of how the European courts describe the scope of their judicial (judgment of the Court of Justice of Jan. 11, 1990. Case C—277/87, Sandoz prodotti farniaceutici v. M. Jaeger. Today’s Multilayered Legal Order, Liber Amicorun, Arjen Me(j. 115—140 (Paris Legal Publishers See, for instance, Hofrer for the concept of undertaking (judgment of the Court of Justice of Apr. 23, 1991, Case C-41/90, Hofizer arid Elser [1991] ECR 1-1979), VCH for the concept of influence on trade between Member States (judgment of the Court of Justice of Oct. 17, 1972, Case 8/72, As we shall discuss below, these requirements of in-depth factual investigation J/eree;iising van Ceinenthandelaren i Conunission [1972] ECR 977). Sandoz for the concept of collusion 6 It has also ruled, however, that collusive Commission on its
practices with appreciable effect on competition and trade between Member States practices must be examined in their economic and legal context and that only Publishing 2000). For the background, see inter alia R. Wesseling, The Modernisation of EC Antitrust Lan’ (Hart ‘° competition laid down in Arts. 81 and 82 of the Treaty [20031 OJ Li/I. ‘ Council Regulation (EC) No. 1/2003 of Dec. 16, 2002 on the implementation of the rules on Masclnnenbau [19661 ECR 235 and judgment of the Court of Justice, July 9, 1969, Case 5/69, Volk v. Raad van besruur van de Nederlandse Mededin’in’sautoriteit [20091 ECR 1—4529). v. Vervaecke [19691 ECR 295. See judgment of the Court of Justice of June 30, 1966, Case 56/65, Sociéti Technique Minière v. ‘ judgment of the Court ofJustice ofJune 4, 2009, Case C-8/08, T-Mobile Netherlands BV and Others Commission [1990] ECR 1—45) and lastly T-1’vlobile for the concept of restriction of competition As part of this decision—making practice and the associated case law, the of Euros on individual undertakings. in which the Commission ended up imposing fines of up to hundreds of millions beginning of this trend which eventually led to the cartel cases of the past decade with comparable roles of all participants), there is a risk that the concepts and legal modernization exercise of the previous decade, should have an economically proper flinctioning of the European internal market and, particularly after the when they are applied in the legal and economic context in which they were objections to the legal concepts developed in the Commission’s practice if and of the Commission’s administrative procedure. Although we have no principled legal concepts and instruments which have significantly enhanced the ‘efficiency’ below. We are particularly concerned about a process of formalization in We will illustrate the risks involved in using the generalized legal concepts from the specific facts of the case which could then conflict with the principles set exclusive power and corresponding duty to apply Article 101(3) TFEU. The to competition within the larger internal market. These cases include the larger Commission officially redirected its enforcement policy.’ Commission was then able to concentrate better on cases that actually cause harm institutionalized cartels, such as those which the Commission started tackling from Commission, General Court and Court of Justice have developed a number of presumptions can also be used outside of such a context because of their general formulation. As such, the enforcement of competition law would become alienated out in the Menarini ruling. 9 It no longer enjoys the (EC) No 1/200318 and an associated series of notices on 1 May 2004, the This contextual, or if one prefers, economic, approach to competition law gained ground during the 1990s. With the entry into force of Council Regulation the end of the 1980s. The Polypropylene, PVC and Cement cases marked the originally applied (i.e., long—standing, highly institutionalized, sector-wide cartels the application of the competition rules. The rules of competition must ensure the fall within the scope of the cartel prohibition. 17 ENFORCEMENT OF EUROPEAN CARTEL LAW 583
Page 1 and 2: * Cartel Law’. World Competition
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Page 13 and 14: unless that undertaking ‘publicly
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