Alrosa v. Commission and Commission v. Alrosa: Rule of Law in Post-Modernisation EU Competition Law Regime

34 Pages Posted: 10 Sep 2010

See all articles by Firat Cengiz

Firat Cengiz

University of Liverpool, School of Law

Date Written: September 9, 2010

Abstract

Regulation 1/2003 granted the European Commission generous powers for the enforcement of EU competition rules which bring with them the potential benefit of increasing efficiency and effectiveness in the enforcement of EU competition rules as well as the potential risk of being misused due to the wide margin of discretion they attribute to the Commission. Additionally, there are certain procedural ambiguities with regard to the enforcement of these powers which raise the potential risk of the breach of due process.

Consequently, effective judicial review of Commission decisions exercising these powers prove essential for the protection of rule of law. This paper analyses the recent judgments of the General Court and the European Court of Justice in the Alrosa case where the courts faced this issue in the context of commitment decisions. This paper argues that in this case the courts failed to adopt an optimal judicial review standard which would protect the rule of law while respecting the Commission’s margin of discretion. The paper further argues that the extent of the legal lacuna left by Regulation 1/2003 implies that a case-by-case addressing of the issue by the courts may not be the most effective strategy and a legislative action may be needed.

Keywords: rule of law, judicial review, modernisation, the principle of proportionality, margin of discretion, margin of appreciation, commitments, settlement, Regulation 1/2003, Alrosa

JEL Classification: K21, K23, K41, K42

Suggested Citation

Cengiz, Firat, Alrosa v. Commission and Commission v. Alrosa: Rule of Law in Post-Modernisation EU Competition Law Regime (September 9, 2010). TILEC Discussion Paper No. 2010-033, Available at SSRN: https://ssrn.com/abstract=1674345 or http://dx.doi.org/10.2139/ssrn.1674345

Firat Cengiz (Contact Author)

University of Liverpool, School of Law ( email )

Brownlow Hill
Liverpool, L69 3BX
United Kingdom

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