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

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SYSTEM determining the duration of the infringement. It then considered whether this review was correctly exercised in these cases. 580 WORLD COMPETITION 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
2 from judicial review. Justice indicates that the complexity of the facts does not shield the Commission ‘ See the literature in footnote 10 of the Editorial Comments in Comm. Mkt. L. Rev. 48—5. Ireland and Others [2009] ECR 1—11245, paras. 53 and 54. 1405—1416 (2011), cited n. I above. Re-empowering the Gourts?, 36—4 Eur. L. Rev. 457—479 (2011). See n. ii above for the formula and D. Gerard, Breaking the EU Antitrust Enforcement Deadlock: See, for example. judgment of the Court of Justice of Dec. 2, 2009, Case C—89/08 P. Commission v. General Court ought to assess this motivation on its own motion. This means that the Chalkor and KME cases. As we have already discussed above, the Court of of audi alteram partem.’ of a criminal nature.The Court ofJustice seems to have countered this criticism in 4 Such a margin of discretion would no longer be appropriate in cases doctrine’).’ with the guidelines.’ intervene if a manifest error was made during that assessment (the ‘manifest error when assessing complex factual situations. The General Court would only 2 3 Market Law Review, the General Court supposedly demonstrates too much respect perform its review in these three factors.This brings us to the question of whether All in all, we see a tightening up of the way in which the General Court must this tightening up will suffice to ward off the criticism expressed in legal literature factors for determining the fine. The Court of Justice further stated that the an ex officio review of the entire case file. officio assessment, does not release it from the obligation to observe the principle for the Commission as a policymaker and limits its review to checking compliance revert to the facts and circumstances put forward by the applicants. However, the regarding the ‘lightness’ of the General Court’s judicial review. According to this relevant factors for determining the fine have been taken into consideration, on the General Court ought to check for itself whether the motivation is valid and refer any doubts to the parties. The fact that the General Court carries out an ex whether the fine is proportionate and must determine for itself whether all applied the fining guidelines. The General Court should form its own opinion on the appropriateness of the fine. More specifically, it ought to assess for itself the understanding that the General Court must also be able for that purpose to the reasons for its decision. It must motivate how it weighed up and assessed the criticism, as recently summarized in the Editorial Comments of the Common Court cannot limit its review to checking whether the Commission has correctly Court ofJustice specified that the appeal at the General Court does not amount to The Court of Justice secondly emphasized several times that the General The Court ofJustice thirdly focussed on the Comniission’s obligation to state The first point of criticism relates to the Commission’s margin of discretion ENFORCEMENT OF EUROPEAN CARTEL LAW 581
Page 1 and 2: * Cartel Law’. World Competition
Page 3 and 4: not offer the guarantee that this c
Page 5 and 6: the appropriateness and proportiona
Page 7: out the importance of Article 47 of
Page 11 and 12: practices with appreciable effect o
Page 13 and 14: unless that undertaking ‘publicly
Page 15 and 16: following observation: comparable w
Page 17 and 18: estrictions’ also affects the con
Page 19 and 20: evidence that must be adduced. The
Page 21 and 22: slanted evidence. 39 Cartel law wou
Page 23 and 24: phase, which precedes the notificat
Page 25 and 26: Conmiission in turn to ‘deformali

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