EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

2. Problem Formulation and Methodology Before Comune di Milano , the learned writing (Lenaerts et al. , 2015, p. 396) provided that Union Courts must in principle, having regard both to the specific features of the case before them and to the technical or complex nature of the Commission’s assessments, carry out a “comprehensive review” as to whether a measure falls within the scope of what is now Article 107(1) TFEU; that was posited while echoing a “comprehensive review as a general rule” in cases related to Articles 101 and 102 TFEU (cf. Lenaerts et al. , p. 389). According to Kreuschitz and Nehl ([in:] Hoffmann and Micheau 2016, p. 433) in doing that, as in the “neighbouring field” of antitrust, the Union judge is obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts, although not to undertake a new and comprehensive investigation of the administrative file. It could be further noted that the issue of the intensity of a review has been described prior to the case at issue by the learned writing as “varying according to the circumstances of the case, including the complexity of the decision (Bacon, 2017, p. 529)”. Other authors have stressed that any “limitedness” as regards judicial review in competition cases “is only carried out as an exception”. The General Court normally undertakes a comprehensive review of whether the conditions of Article 101, Article 102 or the merger regulation are met (Prek and Lefévre [in:] Vesna Tomljenović et al. 2017, p. 42). Thus, as an already contentious issue, this matter should be further reviewed here. 2.1 Problem Formulation The problem at issue here, and thus the relevant research question, is whether C-160/19 P Comune di Milano amounts to severing the latent link between the various areas of competition law, especially between state aid and antitrust rules, and to overruling of earlier case law. This issue is significant for research due to the fact that it affects undertakings as prospective applicants, to their detriment – as the latent “common ground” from antitrust cases was more advantageous for any such applicants. In addition, the GC has also held before Comune di Milano that the standard of judicial review and associated case law “relates to the review of the legality of decisions adopted on the basis of Articles 101 and 102 TFEU and not to the review of the legality of decisions adopted on the basis of Article 107 TFEU (Joined Cases T-479/11 RENV and T-157/12 RENV French Republic and IFP Énergies ouvelles v European Commission , para. 141)”. Thus, the research problem to be named here has found its way to both levels of jurisdiction.

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