There is a growing debate as to the standard of review that the EU courts apply when reviewing European Commission (‘Commission’) decisions in competition law cases. It has been argued that many recent judgments of the EU Courts have essentially done no more than verify whether the Commission had acted within its ascribed competence, and that this deferential intensity of judicial review is constitutionally inadequate.
However, a series of judgments handed down by the General Court of the European Union (‘GC’) on 16 June 2011 suggests that EU judges may now be rising to the challenge and showing themselves willing to exercise the level of judicial scrutiny arguably required of them, following the entry into force of the Treaty of Lisbon, by the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.
Not only did the GC reduce the fines on a number of companies, but for the first time ever, the Commission was held not to be entitled to rely on the presumption that a parent company was liable for the anticompetitive conduct of a wholly-owned subsidiary.
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