Eun Hye Kim

The topic guiding this contribution is most easily described by the catchphrase “legal change”. It seeks to shed light on the interplay between courts and competition agencies and how they respond to changes in the environment while further developing the case law in an incremental manner. This article is an update of the survey published one year ago by Concurrences and discusses recent developments in cartel law from 2020 to 2021, both on a national and European level. Judicial review, for these purposes, refers to appeals against administrative decisions in cartel cases. The focus on a relatively short period of time should not obscure the numerous challenges to effective and secure judicial review which have emerged over the course of the past two years.

This article provides an overview of current trends in European cartel law from mid-2016 to mid-2019. We begin with the following preliminary remarks. In order to guarantee that the European Commission (“Commission”) can adequately carry out its task to oversee and ensure the effective implementation of the EU competition rules, it has been granted a wide range of far-reaching, and even “coercive” competences. For many years, one of the main disputed points has been whether the Commission’s role as investigator, prosecutor and first-instance decision-maker is compatible with Article 6(1) of the European Convention on Human Rights (“ECHR”), which gives expression to the undertakings’ right to a fair trial “by an independent and impartial tribunal”. However, the risks posed by the concentration of those functions and powers in the hands of a single authority are mitigated to some extent by the EU’s system of ex post judicial review. Assuming this system is effective and efficient, it serves as a sufficient control mechanism to uphold the institutional balance and, ultimately, the rule of law within the European Union (“EU”).