EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission. Furthermore on the latter, the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the appellant and taking into account all the relevant evidence submitted by the latter (Case C-99/17 P Infineon Technologies AG v European Commission , paras 47–48, Case C-583/13 P Deutsche Bahn AG and Others v European Commission , para. 34, with reference to Chalkor ). The scope of that review is in principle full (Case C‑382/12 P MasterCard Inc. and Others v European Commission , para. 155) Where there would be complex economic assessments made by the Commission, a review on part of EU Courts is confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or misuse of powers (Joined cases GlaxoSmithKline Services Unlimited v Commission of the European Communities (C-501/06 P) and Others , paras 85 and 156). Nevertheless, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. The EU Courts must, among other things, not only establish whether the evidence put forward is factually accurate, reliable, and consistent, but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it (Case C‑295/12 P Telefónica SA and Telefónica de España SAU v European Commission , para. 54). In my view, this naturally falls within the requirement that the review should include whether the facts have been accurately stated. As regards to the former, the Court has been known to draw upon other areas of competition law to develop its jurisprudence in the area of state aid (cf. Case C-290/07 P European Commission v Scott SA , para. 65: Case C-12/03 P Commission of the European Communities v Tetra Laval BV , and mergers; Case C-303/13 P European Commission v Jørgen Andersen , para. 85: Case C-389/10 P KME Germany and antitrust). Where that inspiration has taken us in the area of state aid is reviewed here – to check whether there is, as of now, any common ground between competition rules on state aid and antitrust law, as regards judicial review (“review of legality”). The law is stated here as it stood on 31 December 2021.

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