Relaxing whilst doing Competition Law is not an Oxymoron

Judicial Review and Article 6(1) ECHR

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With the Menarini judgment, the ECHR has demonstrated that it has nothing to envy to other Courts in terms of cryptic reasoning.

There are indeed two ways to read this judgment. If you follow what the Court says as a matter of principle, the EU judicial review system is not Article 6(1) compliant. Remember, the ECHR says that review courts should have  full jurisdiction in competition matters. In the current state of affairs, the GC does not have full jurisdiction on all aspects of a case, and particularly not when it comes to “complex economic assessments“.

But if you read what the ECHR says on the facts, the EU judicial review system might well be Article 6(1) compliant.  In casu, the Court considers that the Italian system of limited (or “weak“) judicial review is arguably akin to full jurisdiction (!) and thus compatible with the ECHR. This is obviously fictitious.  On close examination, no such intense review exists under Italian law. Yet, the ECHR contends that the Italian review courts  “ont pu examiner le bien-fondé et la proportionnalité des choix de l’AGCM et même vérifier ses évaluations d’ordre technique” (§64). With this ruling, the treshold for full jurisdiction comes real low…

Today, the ECJ just chose which of those two readings prevails in  the EU. In its KME v. Commission ruling, handed down today, the Court states at §133 that:

The review provided for by the Treaties thus involves review by the Courts of the European Union of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. The review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle of effective judicial protection in Article 47 of the Charter“.

I attach hereafter the slides presented by Marco Bronckers at today’s GCLC lunch talk: GCLC – Menarini 8 12 11REV

Written by Nicolas Petit

8 December 2011 at 11:05 pm

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