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

SYSTEM
determining the duration of the infringement.
It then considered whether this review was correctly exercised in these cases.
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evidence to substantiate its argument concerning the disproportionate nature of
the fine. In this way, the Court ofJustice placed the ball back into the applicant’s
instance, the Court ofJustice noted that Chalkor had not put forward any specific
court. The Court of Justice secondly stated, without going into detail, that the
had also examined the appropriateness of the sanction itself.
factors mentioned in the Guidelines and a number of factual aspects in relation to
with reference to the Guidelines, the case law of the Court ofJustice regarding the
This analysis essentially boils down to a validation of the General Court’s ruling,
General Court had not only assessed the sanction under the Guidelines but that it
2.3 PRELIMINARY CONCLUSIONS ON THE UNLAWFULNESS OF THE EUROPEAN
describing the scope of the judicial review in cases that are factually complex and
that generally imply a margin of assessment for the Commission. The Court of
lawfulness of administrative enforcement by the Commission. Even so, it seems to
the existing system of judicial review by the General Court and, in doing so, the
On the face of it, the judgments in KME and Clialkor confirm the lawfulness of
Justice no longer stated in the KME and Chalkor cases that the General Court
us that these judgments will bring about some change in how the General Court
has operated in cartel cases until now.
Court described its jurisdiction in cartel cases. This is a signal that things must
have to entail. One suggestion concerns the use of the standard formula for
change, without the Court ofJustice clearly indicating what those changes would
appeal, the Court of Justice reversed a prohibition decision in a factually
formula that it used in the Tetra Laval case, in which the General Court and, on
nuist limit its review to manifest errors of assessment.
complicated merger case. In other words, by choosing this formula, the Court of
In our opinion, two of these elements merit further attention. In the first
Conm,nission. [2007] ECR 11—3601. para. 87).
The standard formula normally reads as follows: The Court observes that it follows from consistent
as to whether or not the conditions for the application of the competition rules are met, their
case law that, although the Community Courts undertake a comprehensive review of the question
review of complex econoiriic appraisals made by the Commission is necessarily limited to checking
whether the relevant rules on procedure and on stating reasons have been complied with, whether
misuse of powers.’ (judgment of the General Court of Sep. 17, 2007, Case T-201/04, Microsoft m.t
the f.wts have been accurately stated and whether there has been any manifest error of acceptance or
The Court of Justice firstly expressly distanced itself from how the General
11 It referred directly to the