EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

The above dictum from the Court has been made with reference to Case C-300/16 P European Commission v Frucona Košice a.s. , and as regards decisions of the Commission in general (not just those made in the context of the preliminary procedure). However, the Court added in the context of the above duties that it is not for the Commission, on its own initiative and in the absence of any evidence to that effect, to seek all information in the public domain which might be connected with the case before it (para. 50). It would then appear, even if the Commission post- Comune di Milano has no obligation to seek “all information”, that the Court has gone beyond mere manifest errors of assessment in its review as regards the legality of a Commission decision. The Court added that the statement of the reasons on which the judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (C-847/19 P Achemos Grupė , para. 60). This development is welcome, as the issue of an adequate statement of reasons has been missing from the standard of review in Comune di Milano , notwithstanding its nature as an essential procedural requirement (Quigley, 2015, p. 744). Most recently on MEOP and judicial review to be conducted by the General Court, in Case C-933/19 P Autostrada Wielkopolska S.A. v European Commission and Republic of Poland , the Court has reiterated that Courts of the European Union must, inter alia , establish not only whether the evidence relied on is factually accurate, reliable, and consistent but also 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. 117). What is more, this dictum has been held in the context of economic assessments of the Commission and vis-à-vis a plea on appeal that the GC has gone beyond its scope of review (para. 115). The Court has referred in that regard to C-300/16 P European Commission v Frucona Košice a.s . which also reproduces the KME Germany/Chalkor/Tetra Laval standard, while at the same time omitting any reference to Comune di Milano . This is perhaps even more striking that the same judge has acted as rapporteur both in Autostrada Wielkopolska and in Comune di Milano (namely, Judge Arabadjiev). Nevertheless, it follows that the standard of review going beyond manifest errors of assessment is still present in the case law of the Court on judicial review of state aid decisions.

331