EU Cartel Law and the Shaking Foundations of Judicial Review

Abstract

Over the years, the Court of Justice has played an important role in framing the development of antitrust enforcement in the European Union. The vast majority of those cases which have set the boundaries of the exercise of the European Commission’s powers in the field of competition policy have involved direct actions brought by participants in horizontal agreements and hard core cartels. With the increasing number of competition-related cases brought before the General Court (“GC”) at first instance and then appealed to the European Court of Justice (“ECJ”), the foundations of judicial review seemed to have reached a point of equilibrium around the turn of the century. A few recent cases, however, appear to have shaken that fragile equilibrium. This short note aims to account for and criticize that recent case law, which jeopardizes the essence of legal certainty and due process. To that end, Section I summarizes the foundations of the EU judicial review system, as they have emerged in the Court of Justice’s case law in the field of cartels, while Section II deals specifically with the recent cases and the questions they raise.