Judicial Review and EC Merger Control: Reflections on the Effectiveness of the System with Regard to the Standard of Review and Speed

Abstract

The central problem [with the current system of EC merger control] is that the Commission acts as investigator, prosecutor, judge, jury and executioner, with little meaningful right of appeal or other form of redress from a prohibition decision, since cases take a considerable time to reach the Community Courts, and even if the Courts overturn a prohibition decision, the case is only remitted to the MTF, as only the Commission has the power to clear a Community concentration. By that stage of course, the result is entirely academic, since the proposed deal in question will be long dead.The above quotation from the Confederation of British Industry’s (CBI) response to the European Commission’s (hereinafter, ‘the Commission’) Green Paper on the reform of the EC Merger Regulation in 2002 still summarises quite aptly the criticism expressed in recent years by members of the business and legal community about what the critics perceive as a serious shortcoming in the current system of EC merger control: the lack of effective, meaningful in practical terms, judicial control over the administration’s decisions in this area.