Judicial Remedies Under EC Competition Law: Complex Issues Arising from the Modernization Process
Fordham Corporate Law, 2005
35 Pages Posted: 26 Jan 2006
Article 230 EC allows any natural or legal person to institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. Private parties thus frequently rely on this provision to challenge acts adopted by the European Commission (hereafter the Commission) in accordance with the powers granted to it in the field of competition law. While this particular subject has generated extensive scholarly analysis, the last decade of reforms of EC competition law often cited as the modernisation process makes it particularly necessary to re-examine this topic. Two major developments in the field of competition law give rise to novel and complex questions with regard to judicial review pursuant to Article 230 EC.
First, the reforms introduced by virtue of the modernisation of the implementation of EC competition rules have generated a proliferation of new acts whose legal character (and therefore by implication the possibility to challenge these new acts before the European Court of Justice hereafter, the ECJ and the Court of First Instance hereafter, the CFI) is not necessarily clear. This is the case, for example, of the multitude of soft law instruments (notices, guidelines, etc.) which the Commission adopted with a view to clarifying its decisional practice, as well as new binding acts envisaged by Regulation 1/2003 such as findings of inapplicability and decisions to remove a case from a National Competition Authority.
Second, the increased emphasis on the use of economic analysis following the successive reforms of the rules pertaining to horizontal and vertical agreements and merger control has transformed competition law into a technically complex subject matter whereby economists are stealing a lead over lawyers. The corollary of this development could be to limit the scope of judicial review exercised by generalist EC and national courts. Indeed, faced with having to make complex evaluations involving the weighing up of anti-competitive restrictions and efficiency gains, the generalist judge could quickly find himself lost. Therefore, the more opaque and complex a particular case is, the wider the Commissions discretion in its decision making becomes. Certain recent judgments of the CFI concerning the annulment of Commission prohibition decisions in merger control, however, put this danger into perspective.
Apart from the above-mentioned developments, it is equally worth highlighting the proliferation of litigation running in parallel to annulment actions. Such litigation calls for, first and foremost, a re-examination and revision of the fines imposed by the Commission under Articles 81 and 82 EC. Subsequent to successful annulment actions, such litigation also encompasses actions for compensation of the losses incurred by the firm(s) subjected to unlawful Commission decisions. The recent case Holcim v. Commission or the request lodged by Mytravel after the Airtours judgment illustrate the development of such litigation in the field of competition law.
Against this background, the developments that follow intend to provide a critical analysis of annulment actions against Commission decisions in the field of competition law in the aftermath of the modernisation process. This study is made up of seven parts. Part II identifies those acts that can be the subject of an annulment action within the meaning of Article 230 EC. Part III reviews and analyses the rules laying down who is entitled to initiate an annulment action. Part IV recalls the modalities for an annulment action. Part V evokes the parallel actions (revision of fines) and subsequent actions for indemnity following an annulment action. Part VI evaluates the effectiveness of the Community annulment action procedure in the light of the principles laid down by the CFI and ECJ as regards judicial review. Part VII provides a brief conclusion.
Keywords: judicial review, remedies, antitrust, competition law, EC, standing, European Commission, litigation, enforcement, damages
JEL Classification: K21, K41, K42, L40
Suggested Citation: Suggested Citation