Chapter 5: The evolution of the ‘full jurisdiction’ of the Union Courts in Article 101 and 102 matters
This chapter examines the jurisprudence of the Courts of the European Union with a view towards assessing the impact of the KME judgment of the Court of Justice. This judgment upholds the compatibility of the jurisdiction of the Union Courts to review the decisions of the European Commission applying Articles 101 and 102 TFEU and imposing fines for infringements of those provisions with the EU principle of effective judicial protection. The examination demonstrates the evolution of the standard of review in such cases to a standard of correctness. In this regard, it is argued that the standard of correctness is required as regards any issue of fact or law that bears directly on the imposition of, or the calculation of, a fine. The paper also clarifies that the standard of correctness applies where the Union Courts review the Commission’s evaluation of factual evidence, except in matters of complex economic or technical assessment, where a more deferential standard persists. With regard to the more deferential approach in the latter context, it is argued that this vestige of the margin of appreciation concept is contrary to fundamental rights principles given the current institutional configuration. In recent years, it has been controversial whether the standard of judicial review of decisions of the European Commission (‘Commission’) applying Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’)amounts to ‘full jurisdiction’ and is therefore compatible with the EU principle of effective judicial protection.
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