EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

misuse of powers. In addition, the European Union Courts may verify whether the rules on procedure and on the statement of reasons have been complied with and whether the facts have been accurately stated. This is not called into question by the appellant’s reference to the case law on the review of cartel fines. The European Union Courts have unlimited jurisdiction in that field under Article 261 TFEU and the relevant regulations. For a review of State aid decisions, on the other hand, the standards of review described above are applicable. 3.3 Analysis At the outset, the case law at issue which, according to the Court in C-160/19 P Comune di Milano , “cannot be” applied as is to the judicial review of decisions of the Commission on State aid matters, has in fact been applied thereto (cf. joined cases C-214/12 P, C-215/12 P and C-223/12 P Land Burgenland (C-214/12 P), Grazer Wechselseitige Versicherung AG (C-215/12 P) and Republic of Austria (C-223/12 P) v European Commission , para. 79; Case C-81/16 P Kingdom of Spain v European Commission , para. 70; Case C-114/17 P Kingdom of Spain v European Commission , para. 104; C‑73/11 P Frucona Košice above , para. 76; Case C-290/07 P Scott above, para. 65; Case C-525/04 P Kingdom of Spain v Commission of the European Communities (Lenzing AG) , para. 57). As it follows from those cases, the standard of review referred to in KME Germany and in Chalkor has been in use in state aid cases, contrary to what the Court has held in C-160/19 P Comune di Milano . On the point made by AG Kokott in that those cases, in the main, allegedly refer to “unlimited jurisdiction” and “relevant regulations”, it should be recalled that the above dicta from KME Germany and Chalkor (themselves something that originally came from Tetra Laval ) have been made on review of legality, based on Article 263 TFEU, as well as on the principle of effective judicial protection (now also enshrined in Article 47 CFREU). Thus, decisions on those cases have hardly been made exclusively on unlimited jurisdiction. In addition, as the law stands now, the area of state aid is also capable of featuring fines, penalties and unlimited jurisdiction as regards undertakings concerned (cf. Article 8(6) of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union). The directly preceding case referred to at para. 100 in C-160/19 P Comune di Milano on the market economy operator principle, C-244/18 P Larko Geniki Metalleftiki kai Metallourgiki AE v European Commission , stated at para. 41 that the applicant in a state aid case involving the MEOP is fully entitled to state that it was nevertheless for the General Court to establish not only whether the evidence relied on was factually accurate,

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