Due process in competition cases: A step forward by the ECJ



The unique features of the European Commission’s competition proceedings, where the Commission acts as investigator, prosecutor and maker of decisions on guilt or innocence, have long been controversial. Due process problems have received more attention as fines in competition cases have increased greatly in recent years. The controversy intensified with the advent of the Lisbon Treaty in December 2009. Part of the disquiet of the legal profession was that EU Courts exercised limited judicial review: in a number of competition cases they did no more than verify whether the Commission had acted within its ascribed powers and followed its own fining Guidelines. Recent judgments by the European Court of Human Rights (including Menarini and Primagaz) confirm its growing interest in competition law matters. White & Case lawyers and others have written articles on this problem.

On 8 December 2011, in its judgments in Cases C-386/10 P Chalkor v Commission, C-389/10 P KME v Commission and C-272/ 09 P KME v Commission, the European Court of Justice (“ECJ”) pronounced on the level of judicial review which the General Court of the European Union (“GC”) must carry out when reviewing Commission decisions in competition cases. Although the ECJ rejected the appeals, it did not endorse the limited judicial review frequently applied by the EU courts and to the contrary prescribed rigorous standards of judicial review.

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