Judicial Review after KME: An Even Stronger Case for the Reform that Will Never Be

(2015) 40 European Law Review 490

19 Pages Posted: 6 Oct 2018

See all articles by Renato Nazzini

Renato Nazzini

King's College London – The Dickson Poon School of Law

Date Written: September 13, 2015

Abstract

In KME, the Court of Justice upheld for the first time compatibility of the standard of judicial review of decisions by the European Commission imposing fines for competition infringements with Article 47 of the EU Charter of Fundamental Rights. However, the Court left it unclear whether the standard of judicial review previously applied by the Union courts was sufficient or a stricter standard was required. This article compares the case law before and after KME and argues that the post-KME standard of review is, or at least should, be different from the standard previously applied and is evolving into a full correctness standard both as regards the fining decision and as regards the finding of infringement. The only area where the case law still defers to the European Commission is that of complex technical and economic assessments but even this is no longer tenable under the EU principle of effective judicial protection. This brings into question the current institutional balance between the European Commission and the Union courts and the efficiency of the EU competition enforcement system, highlighting the desirability of structural reforms.

Keywords: competition law, antitrust, EU law, judicial review, fundamental rights, right to effective judicial protection

JEL Classification: K21

Suggested Citation

Nazzini, Renato, Judicial Review after KME: An Even Stronger Case for the Reform that Will Never Be (September 13, 2015). (2015) 40 European Law Review 490 . Available at SSRN: https://ssrn.com/abstract=3249088

Renato Nazzini (Contact Author)

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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