EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

reliable and consistent, but also whether that evidence contained all the relevant information which must be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions drawn from it. The decision in C-160/19 P Comune di Milano does not contain any dicta as to why that standard of review from KME Germany and Chalkor (and, by extension, from the original Tetra Laval and later antitrust cases adopting that standard) cannot be applied anymore. Apart from C-244/18 P Larko , C-160/19 P Comune di Milano was preceded by Case C-148/19 P BTB Holding Investments SA and Duferco Participations Holding SA v European Commission , para. 56, which did not expressly use this standard of review (limiting itself to “manifest errors of assessment”) yet without express denial of applicability thereof. It would then appear that the position of the Court in C-160/19 P Comune di Milano amounts to an attempt at overruling earlier case law. Thus, the issue from the Court is not whether the standard of judicial review that has come to the area of state aid from other areas of competition law (esp. from KME Germany, Chalkor and Tetra Laval ) can be used at all, but whether it can continue to be relied on as good law. 3.4 Problem Solution It appears from later case law that the less stringent standard of judicial review professed by the Court in regard to the MEOP in C-160/19 P Comune di Milano has been followed by cases adopting a different approach to the matter. In Case C-847/19 P Achemos Grupė UAB and Achema AB v European Commission , para. 41, after hearing the appellants who specifically relied on Tetra Laval (para. 34), the Court held that the lawfulness of a decision concerning state aid fails to be assessed by the EU judicature, not only in the light of the information available to the Commission at the time when the decision was adopted, but also information which could have been available to the Commission. The Court added that the information ‘available’ to the Commission includes that which seemed relevant to the assessment to be carried out in accordance with the case law on the preliminary examination procedure and which could have been obtained, upon request by the Commission, during the administrative procedure; The Commission is required to conduct a diligent and impartial examination of the contested measures, so that it has at its disposal, when adopting the final decision establishing the existence and, as the case may be, the incompatibility or unlawfulness of the aid, the most complete and reliable information possible for that purpose (paras 42 and 43).

330