EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

[T]he European Union Courts must not only establish whether the evidence relied on is factually accurate, reliable and consistent, but also review whether that evidence contains all the relevant 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 (para. 109). It should be noted here that the last paragraph above from the decision at first instance on what EU Courts are expected to do in the context of judicial review refers to the original dicta from C‑12/03 P Tetra Laval , para. 39 – a merger case, which itself has been referred to in Case C-272/09 P KME Germany AG, KME France SAS and KME Italy SpA v European Commission , para. 94, and later as regards antitrust, e.g. in Case C-386/10 P Chalkor AE Epexergasias Metallon v European Commission , para. 54, and in C‑295/12 P Telefónica SA , para. 54. Arguably, a “review whether evidence contains all the relevant 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” goes beyond manifest errors of assessment, and by virtue of e.g., C‑295/12 P Telefónica SA , is exactly the thing EU Courts should do beyond checking whether there is any such error. In addition, those dicta have been provided on the “review of legality” as envisaged under Article 263 TFEU, outside instances of unlimited jurisdiction as regards penalties. On appeal, the Court provided at para. 101 of the decision at issue that “the General Court did not vitiate the judgment under appeal through an error of law when it limited itself to verifying whether the Commission’s economic assessments relating to the application of the private investor test were vitiated by a manifest error of assessment”. At para. 102, the decision continues to say that [C]contrary to what the City of Milan claims, no other conclusion can be drawn from the case-law resulting from the judgments of 8 December 2011, KME Germany and Others v Commission (C‑272/09 P, and of 8 December 2011, Chalkor v Commission (C‑386/10 P). As the Advocate General observed, in essence, in point 80 of her Opinion, that case law, which relates to the judicial review of decisions of the Commission finding infringements of Articles 101 and 102 TFEU and imposing, where appropriate, pecuniary penalties on the basis of those infringements, cannot be applied as is to the judicial review of decisions of the Commission on state aid matters. AG Kokott to whom the Court referred has opined (paras 79–80) that [I]t is not for the Courts of the European Union to substitute their own assessment for that of the Commission and substantively they may examine only whether there has been any manifest error of assessment or

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