Is There Sufficient Judicial Review in Assessing Economic Evidence in Article 102 TFEU Cases?

Abstract

In the past academics and practitioners have criticized the lack of research and consideration of due process in competition investigations and penalties. Although, in recent years much has been written on the nature of competition law procedure, particularly questioning whether it falls within the area of criminal or administrative decision-making. Likewise, there has been a rise in the analysis of procedural rights, standards of evidence and burdens of proof. More recently levels of judicial review have formed a research focus. Whilst this explosion of research into these important issues is welcome and necessary to stimulate discussion, debate and potential reform, the focus in the writing is often on Article 101 TFEU and is further narrowed to cases that result from the cartel busting powers of the Commission. Within this literature, we find the core of the debate relates to standards of proof, procedural rights and levels of judicial review within the EU system. There is a gap in the research when it comes to the question of rights in 102 investigations, decisions and levels of judicial scrutiny. This may be explained in that there are fewer cases under this Article. Nonetheless, it is still deserving of consideration, especially given the differences between the two Articles. It is Article 102 that forms a sectional focus of this research.

Keywords: EU competition, antitrust, economic evidence, Article 102 TFEU