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Standards of Proof and Standards of Judicial Review in EU Competition Law - Chapter 5 - International Antitrust Law & Policy: Fordham Corporate Law 2005
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International Antitrust Law & Policy: Fordham Corporate Law 2005 - Hardcover International Antitrust Law & Policy: Fordham Corporate Law 2005 - PDF ___________________________________________________________________________________ Preview Page Chapter 5
STANDARDS OF PROOF AND
STANDARDS OF JUDICIAL REVIEW
IN EU COMPETITION LAW
Hubert Legal†
The question of the scope and intensity of judicial review of decisions
taken by the Commission in the field of competition has, with good
reasons, drawn academic attention since the annulment by the European
Court of First Instance (CFI) of three merger decisions in 2002. After the
judgment of the European Court of Justice (ECJ) of 15 February 2005 on
the appeal by the Commission in the Tetra Laval case,1 one can reasonably
conclude that the standards set by the CFI in terms of proof by the
Commission of its economic findings and in terms of review by the judicial
authority of its economic assessments have been endorsed by the higher
judge. What is less clear is the meaning of this with regard to the margin of
discretion the Commission holds, not only in its appraisal of particular
situations, but, more importantly, as a policymaking organ, based on the
EC Treaty, on applicable regulation and on jurisprudence. Quite a few
papers have underlined the ambiguity, sometimes called “constructive
ambiguity,” of the case law on who does what between the Commission
and the two degrees of the EU judicature. Time will tell, and I do not think
anyone can already foresee what institutional balance will eventually be
reached. I would like to contribute to the discussion, for my part, first by
recalling the historical origin of the methods of control used by the ECJ,
which may serve to show where our Courts currently stand in reference to
their tradition, and, second, by trying to identify some of the major
pending issues on which it would be unwise to jump to conclusions now.2
It goes without saying that I offer these remarks purely in my
personal name; the collective position of our judicature is to be found in its
rulings only, as is natural for a judicial organ. But the subjective reaction of
a given judge to a legal problem may be in itself worth explaining as, in an
About the Editor:
Barry Hawk is Director of the Fordham Corporate Law Institute and Partner with Skadden Arps (New York and Brussels). He is former Vice Chair of the ABA Antitrust Section and former Chair of the New York State Bar Association Antitrust Section, as well as Professor at Fordham Law School and Visiting Professor at Michigan Law School, Monash University Law School, New York University Law School and the University of Paris.
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