Judicial Review after KME: An Even Stronger Case for the Reform that Will Never Be

Abstract

In KME, the Court of Justice upheld for the first time compatibility of the standard of judicial review of decisions by the European Commission imposing fines for competition infringements with Article 47 of the EU Charter of Fundamental Rights. However, the Court left it unclear whether the standard of judicial review previously applied by the Union courts was sufficient or a stricter standard was required. This article compares the case law before and after KME and argues that the post-KME standard of review is, or at least should, be different from the standard previously applied and is evolving into a full correctness standard both as regards the fining decision and as regards the finding of infringement. The only area where the case law still defers to the European Commission is that of complex technical and economic assessments but even this is no longer tenable under the EU principle of effective judicial protection. This brings into question the current institutional balance between the European Commission and the Union courts and the efficiency of the EU competition enforcement system, highlighting the desirability of structural reforms.

Keywords: competition law, antitrust, EU law, judicial review, fundamental rights, right to effective judicial protection

JEL Classification: K21