24 economic matters. The EU Courts must examine not only whether the reliance of economic evidence is accurate and reliable, but also whether the evidence contains all the information in order to assess a complex situation. It is therefore capable of substantiating the conclusion. 83 In view of effective judicial protection in competition enforcement, EU competition law has provided for the unlimited jurisdiction to review the Commission’s decisions concerning the gravity of fines or periodic penalty payments in Article 31 of Regulation 1/2003. In addition, Articles 261 and 263 of the TFEU can both be demonstrated to give the full jurisdiction in competition matters, in particular the cases of imposing fines. The control of legality under Article 263 of the TFEU may be viewed as a comprehensive method to review the facts and law, and the purpose of this provision is to ensure the protection of citizen’s rights. Fines in competition enforcement are entitled to unlimited jurisdiction, pursuant to Article 31 of Regulation 1/2003 in a relationship to Article 261 of the TFEU. In other words, these two provisions of the TFEU and Article 31 of Regulation 1/2003 have empowered the GC and the CJEU to review the Commission’s decisions in competition cases, particularly in terms of the legality of the Commission’s decisions dealing with fines. Such a legal effect has put further for the discussion concerning fair trial requirement of Article 6 of the ECHR and the Commission’s role in carrying out the enforcement. This discourse between EU competition enforcement and the role of the EU Courts in terms of their judicial review as a company’s fair trial protection has also been at the core of EU competition law. Given this critical issue, the subsequent content will analyse the scope and intensity of the judicial review that the EU Courts can exercise, while ruling on the antitrust cases. 84 83 Otis and Others (n 79) para 59. 84 José Carlos Laguna De Paz ‘Judicial Review in European Competition Law’ (2012) 5 accessed 26 September 2016.
25 c. Judicial Review and the Commission’s Complex Economic Assessment The judicial review of the amounts of fines in antitrust cases is more in-depth, because of the relationship between Article 261 of the TFEU and Article 31 of Regulation 1/2003. 85 However, following the ruling of the Otis and others, the EU Courts cannot use the Commission’s discretion power, which is usually related to a complex economic appraisal, and therefore the Courts would have a marginal review. 86 This lighter scope and intensity of review consequently constitutes a doctrine of judicial deference of the EU Courts. 87 In fact, the EU Courts have shown its utmost judicial deference to the Commission in the cases of the commitments. 88 The Alrosa case concerns the Commission’s decision object to commitments pursuant to Article 9 of Regulation 1/2003. The CJEU upheld the manifest error test, and it had left the Commission a wide margin of discretion when deciding whether or not to accept commitments. However, this case of decisions concerning the imposition of fines for infringements of Articles 101 and 102 of the TFEU is fundamentally different from the commitments. 89 The Commission has the decision-making power to carry out a complex economic appraisal in the infringements of Articles 101 and 102 of the TFEU. It follows that the loss of this decision-making power may be problematic as it undermines the authority’s policy-making functions. 90 As a consequence, an introduction of a marginal review is generated, when the EU Courts examine elements and factors of the Commission’s decisions that have been adopted in consideration of a margin of appreciation that the decision-maker legally holds. The EU Courts would thus restrain themselves to justifying 85 Ioannis and Adriana (n 48) 401. 86 Otis and other (n 81) para 59. 87 Marc Jaeger, ‘The Standard of Review in Competition Cases Involving Complex Economic Assessments: Towards the Marginalisation of the Marginal Review?’ (2011) 2(4) Journal of European Competition Law and Practice 300. 88 Ibid 304. 89 C 441/07 P, Alrosa Company Ltd v Commission paras 63 and 64. Advocate General Kokott’s Opinion para 81. 90 Marco Bronckers and Anne Vallery, ‘Fair and Effective Competition policy in the EU: Which Role for Authorities and Which Role for the Courts after Menarini?’ (2012) 8(2) European Competition Journal 297.