Judicial review: A first view from the bench (New Frontiers of Antitrust, Paris, 13 June 2016)

Achieving due process in EU competition proceedings is one especially challenging example of the general obligation of EU institutions to be fair to the citizens. Enforcing competition law inevitably implies the exercise of discretion by the public authority. Today we accept that the legitimacy of competition law enforcement depends on the availability of complete and robust judicial review.It will be the case more often than not that an institution has made an error rather than acted lawlessly. The question is then how interventionist the courts should or may be. Robust judicial review renders legitimate the practice of administrative decisions in EU competition matters. It is obviously a form of quality control, but in order to be consistent with the Charter as interpreted by the Court in Chalkor and with the Human Rights Convention as interpreted by the Strasbourg court in Menarini, it is necessary to engage in robust examination of questions of facts and law, not merely the formal requirements of legality.

1. A regular theme of my contributions as teacher and practitioner in my past life was procedural due process in Brussels and the intensity of judicial review in Luxembourg. This afternoon I propose to review where we are in light of recent Strasbourg and Luxembourg cases touching procedure and appellate review. 2. I shall suggest that the Luxembourg courts’ actual practice may appear to diverge from the approach prescribed by the Treaty of Rome as amended. However, if I am right, this should be regarded as a good thing. Indeed, the legitimacy of Commission enforcement of the competition rules depends on the availability of rigorous judicial review that satisfies the requirements not just of “legality” but also involves a full review of fact and law. 3. While this contribution

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  • General Court of the European Union (Luxembourg)


Ian Forrester, Judicial review: A first view from the bench (New Frontiers of Antitrust, Paris, 13 June 2016), September 2016, Concurrences Nº 3-2016, Art. N° 80791,

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