Table of Contents. Chapter one. General Issues

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1 Table of Contents Introductory remarks FOREWORD Chapter one General Issues JUDICIAL REVIEW IN EUROPEAN UNION COMPETITION LAW: A QUANTITATIVE AND QUALITATIVE ASSESSMENT Introduction I. The Functions of Judicial Review A. The Case for a Functional Approach of Judicial Review B. A Proposed Typology of the Functions of Judicial Review Safeguarding Universal Values The Lawyer s Standpoint Promoting Welfare The Economist s Standpoint a) Eradicate Decisional Errors b) Establish Normative Standards Ensuring Accountability The Political Scientist s Standpoint Other Functions of Judicial Review II. Importance of Judicial Review in EU Competition Law A. Importance of Judicial Review in Competition Law Competition Law is Prone to Serious Errors Competition Law interferes with Fundamental Rights Competition Law may not be enforced in the Public Interest B. Importance of Judicial Review in EU competition law Inadequate Enforcement Structure Insufficient Checks and Balances The influence of Commission Decisions at the National Level bruylant 5

2 III. Nature and Scope of Judicial Review in EU Competition Law A. The Provisions of the TFEU B. Full vs. Restrained Review of Commission Decisions Review of the Law Review of the Facts IV. Quantitative Assessment of the GC s Judicial Review A. Purpose, Background and Methodology B. Performance of the GC in relation to the Safeguarding of Fundamental Principles Protecting the Participation of Stakeholders Protecting Fundamental Principles a) References to Instruments protecting Human Rights and Fundamental Freedoms b) References to General Principles of EU Law (including Competition Law) Conclusion C. Performance of the GC in relation to the Promotion of Welfare V. A Qualitative Analysis of the Setting of Normative Standards Function in the Case-Law of the General Court. 65 Conclusions THE SCOPE OF JUDICIAL REVIEW IN EU ECONOMIC CASES.. 73 I. The nature of the EU judicial review: a control of legality A. Limited control External and internal legality No power of substitution No appeal Comprehensive review, but deference to the Commission. 76 B. Unlimited jurisdiction II. Criteria used to justify a limited judicial review A. The rule of law Self-restraint Need for a comprehensive review v. alleged necessity to limit judicial review B. The category of act Political discretion a) Legislative acts b) Priority choices bruylant

3 2. Technical discretion a) Expert knowledge needed b) Complex economic appraisals Modernisation Limits to deferential approach Competition law cases before the EU Courts: is the well running dry? Introduction I. Direct actions in competition law cases: no flood in sight A. Potential for an increase of direct actions in competition law cases B. The number of direct actions in competition and State Aid cases has not increased significantly II. Preliminary references in competition law cases: no significant increase either A. Potential for an increase of preliminary references in competition law cases B. The number of preliminary actions in competition and State Aid cases has not increased significantly III. The potential for a decrease in the number of competition cases before the EU Courts Conclusion Why does it matter? CHAPTER TWO The EU Courts Scrutiny Over The Commission in Competition Law Cases Standard of Judicial Review under Articles 101 and 102 TFEU Introduction I. Judicial review of antitrust decisions A. Grounds of judicial review B. Standard of judicial review Standard of review under Article 101 TFEU Standard of review under Article 102 TFEU III. Recent case law of the EU Courts A. GlaxoSmithKline v Commission B. Alrosa v Commission bruylant 7

4 C. AstraZeneca v Commission IV. The future of judicial review in antitrust cases A. Towards a greater intensity of review The experience of the General Court in competition matters Expert evidence before the EU Courts The European Convention of Human Rights Direct applicability of Articles 101 and B. Rationale for limiting judicial review Specialist knowledge and expertise Article 263 TFEU Separation of powers in the EU Conclusion ANNULMENT PROCEEDINGS IN ANTITRUST CASES (ARTICLES 101 AND 102 TFUE) STANDARD OF JUDICIAL REVIEW OVER SUBSTANTIVE ISSUES I. Control of legality and standard of review in competition law cases: the example of Arts. 101(1) and 102 TFEU II. Control of legality on the Commission s exercise of its fining powers III. From comprehensive review to the margin of appreciation : the example of Art. 85(3) EEC/81(3) EC before Modernization IV. Overexpansion of the judicial deference doctrine in the recent EU case-law IV. Judicial deference is contrary to the right to full and effective access to an independent and impartial tribunal within the meaning of Art. 6(1) ECHR THE GENERAL COURT S UNLIMITED JURISDICTION OVER FINES A CHALLENGE FOR EUROPE S JUDGES: THE REVIEW OF FINES IN COMPETITION CASES Introduction I. The European Commission s Fining Powers and Policy II. The Scope of Judicial Competence bruylant

5 III. The Court s Practice A. Merits adaptation of the fine B. Assessment of proportionality C. Technical adaptation of the fine D. Deference to the Commission s discretion IV. Gravity, Duration, Intention and Negligence A. Summary as to current judicial practice V. The New Constitutional Order A. The penal characteristics of how fines are imposed B. Summary of the human rights analysis C. Administrative or criminal? D. Other problems of non-judicial condemnations E. Quasi-criminal, soft criminal offences, and civil penalties F. The Primagaz precedent G. The problem in summary VI. Proportionality Conclusion ANNULMENT PROCEEDINGS IN EU MERGER CASES: WORTH THE EFFORT? Introduction I. Spectrum of review II. Evolution of the role of EU courts in merger cases III. The early years IV. The watershed cases V. Consequences of the Watershed cases VI. EU merger appeals post VII. Timing Conclusions SUBSTANTIVE STANDARD OF JUDICIAL CONTROL IN STATE AID MATTERS Introduction I. The standard of control as defined by the EU Courts A. Scope and characteristics of the restrained control bruylant 9

6 B. Scope and characteristics of the normal control and limitations thereon II. Getting closer to a coherent and comprehensive standard of judicial review in the field of State aid A. Specifying in detail the scope of application of the restrained control The rationale behind restrained control The material scope of application of the restrained control B. The characteristics of the restrained control as opposed to the comprehensive control C. Admissibility of a full control of proportionality in the field of State aid? Conclusions Admissibility of Actions Challenging Commission State aid Decisions Introduction I. Interest to Act in respect of State aid decisions II. Individual Concern A. Beneficiaries B. Competitors and complainants First phase decisions Second phase decisions C. National authorities other than central government D. Negotiators E. Trades unions and employees associations F. Mixing of procedural rights and pleas as to the merits Conclusion Chapter Three Institutional and Procedural Challenges Faced by the EU Courts in Competition Law Cases THE ROLE OF THE COURT OF JUSTICE IN ENSURING COMPLIANCE WITH FUNDAMENTAL RIGHTS IN COMPETITION CASES SINCE THE LISBON TREATY bruylant

7 I. European Competition law and Fundamental rights post the Lisbon Treaty II. Showdown in Strasbourg? III. The exercise of unlimited jurisdiction with respect to fines. 273 IV. Shifting focus MARGINAL REVIEW BY THE EUROPEAN COURT OF JUSTICE IN COMPETITION CASES AND ITS COMPATIBILITY WITH FUNDAMENTAL RIGHTS I. Article 7 ECHR (Article 49 of the Charter) II. Article 6 ECHR (Article 47 of the Charter) Conclusion EXPERT ECONOMIC EVIDENCE IN EUROPEAN COMPETITION LAW CASES: SOME PERSONAL VIEWS Introduction I. Why does economics have a role in competition law? II. What constitutes a good economic submission? III. Economic evidence or economic opinion? IV. The impact of economics on legal certainty V. What does market testing tells us about the ability of judges and competition authorities to assess complex economic analysis? EXPERT ECONOMIC EVIDENCE AND EFFECTS-BASED ASSESSMENTS IN COMPETITION LAW CASES Introduction I. Expert economic evidence or expert economic argument? II. The role of economics and of effects-based assessments in competition law A. The conquest of competition law by economics B. The role of economics in the design of legal rules C. The role of economics in the enforcement of legal rules: the tension between legal certainty and effects-based assessments Conclusion bruylant 11

8 SPECIALISED COMPETITION COURTS, CHAMBERS AND JUDGES: STATE OF PLAY IN FRANCE Introduction I. Current legal framework in competition matters: concentration and specialisation A. The power of sanction given to the Competition Council, an administrative body, placed under judicial court control B. In civil litigation, specialisation and concentration for both anticompetitive and restrictive practices II. Specialisation in practice A. Specialised courts, laboratories for the making of law in modern economies? B. Remaining questions: a principle of exception implying limits in application, a rule of coordination still to come The application of the rule of specialisation to the defense, when based on competition law The case of a mixture of competition law, IP rights and contracts law The case of interim measures C. What about coordination? The other way round: keeping the case with recourse to Amicus curiae Developing specialised networks The res judicata issue, still unresolved in France Conclusion The national court systems role in adjudication of competition law cases European and Swedish aspects Abstract Introduction I. The costs of enforcement II. How should we ensure consistency and timeliness? III. Should we go for specialist or generalist courts? IV. Should judges be competition law specialists or generalists? bruylant