I. Introduction 1. Numerous studies have addressed the issue of judicial review as part of the balance of powers within political systems based on democratic foundations. [1] Institutional history enhances our understanding of rules purporting to establish checks-and-balances while attributing powers to the legislature, the administration and the judiciary. In that context, the relations between those three powers were forged and theories were developed on the nature of judicial review and on the justification of its special features in cases involving legislative or administrative discretion. The scope of this paper is somewhat more technical. It focuses on the precise source and nature of discretionary powers and examines whether provisions of the Treaties determine the features of
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ARTICLES: LITIGATION – JUDICIAL REVIEW – DISCRETION
Discretion and judicial review in EU competition law: A technical analysis on sources of discretion, judicial review and implications for the litigants
The European Union is based on the rule of law inasmuch as measures adopted by its institutions or by its Member States are reviewed as to their conformity with EU Law within what is called “a complete system of legal remedies and procedures.” In this context, the question arises as to the characteristics of judicial review of measures adopted within a legal framework conferring discretion on the competent institution or body of the Union. In addressing this issue, methodology is of the essence. Discretion must be defined as “the existence, as a matter of law, of more than one equally valid choice open to the decision-making authority.” Whatever the field of EU Law, the existence of such option is a necessary and sufficient condition for discretion. It may relate to the method according to which a particular issue is to be assessed, to the final position adopted among various equally valid positions or to both of the above. Consequently, one should always begin by determining whether the provision(s) forming the legal basis of the contested act afford(s) the author of the latter such an option, either explicitly or implicitly, but necessarily. Should this be the case, it is then necessary to identify the criteria that draw the perimeter encompassing the legally valid choices in order to assess whether the method of analysis and/or the final position embodied in the measure under review fall within that perimeter. This paper analyses the basic characteristics of the review of legality undertaken by EU judicature in cases involving discretion of the author of the contested act in EU competition law. It seeks to assess the extent to which such review is based on methodological principles capable of providing guidance to the litigants seeking effective judicial protection, on the one hand, and the role of unlimited jurisdiction, on the other.
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