Fair and Effective Competition Policy in the EU: Which Role for Authorities and Which Role for the Courts After Menarini?

Abstract

Competition law enforcement in the EU and in most EU Member States follows an administrative model: decisions on the infringement and on the fine are taken by an administrative agency; when courts are called upon to review these decisions they traditionally leave a large measure of discretion to these agencies. With the considerable increase in fines, and attendant measures such as recidivism factors, this model has now clearly taken on features of criminal enforcement. From a fundamental rights perspective serious questions have arisen as to whether this model still conforms to the precepts of a fair trial. These questions were addressed in part in the recent Menarini-judgment of the European Court of Human Rights and subsequent judgments by the European Courts (KME, Chalkor, Posten Norge). These recent judgments show that judicial review of administrative competition law fines will have to intensify. Fairness also requires at some point a shift from administrative to judicial enforcement.