EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Judicial Review of Commission Decisions in Antitrust and State Aid Cases : C-160/19 P Comune di Milano and Beyond Łukasz Stępkowski University of Opole Faculty of Law and Administration, Chair of Commercial and Financial Law Katowicka 87a, Opole, 45-067 Poland e-mail: lukasz.stepkowski@uni.opole.pl Abstract This paper addresses the issue of the standard of review in EU antitrust cases vis-à-vis another area of EU competition law – specifically, that of state aid. The standard of review in antitrust cases inter alia presupposes that Union Courts, which are in principle tasked to carry out a full judicial review, cannot refrain from reviewing the Commission’s interpretation of information of an economic nature and must establish whether the evidence relied on is factually accurate, reliable, consistent, whether that evidence contains all the information which must be taken into account in order to assess a complex situation, and whether it is capable of substantiating the conclusions drawn from it. This “antitrust standard” of judicial review could have been seen as a template for other areas of EU competition law. However, recent decisions of the Court of Justice, including the decision in C-160/19 P Comune di Milano , appear to limit the influx of antitrust case law into other areas of EU competition law, to the detriment of the quality of judicial review. Such a lessening of judicial review undoubtedly constitutes an important issue for private applicants, and thus merits further comment. Thus, this paper attempts to present the state of play as regards judicial review of powers exercised the Commission both in the area of antitrust and that of State aids. Keywords: Judicial Review; Antitrust; State Aid; European Commission; Decisions JEL Classification: K2, K3, K4, K210 1. Introduction This submission presents the issue of judicial review of Commission decisions made in state aid cases vis-à-vis the standard of review in antitrust cases. The latter may be encapsulated in the findings of the Court of Justice in Infineon , in that system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which a provision is made in Article 263 TFEU, which may

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