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ECHR and competition law post Menarini : An overview of EU and national case law

Christopher Bellamy, e-Competitions, N°47946, 5 July 2012.

See Christopher Bellamy's resume

Introduction

A year ago a foreword to e-Competitions by Ian Forrester QC addressed the issue of judicial review in competition cases at EU and national level [1]. The author concluded, first, that "Member States courts have been far more interventionist in reviewing decisions made by their national competition authorities than is the current norm in Luxembourg" [2]; and secondly "The procedures of the European Commission are arguably weak, yet the intensity of judicial review accorded to its decisions is arguably deferential" [3].

Since then, the judgment of a chamber of the European Court of Human Rights of 27 September 2011 in Menarini [4] has examined the impact of Article 6(1) of the ECHR in competition cases. Arguments under Article 6(1) were also advanced before the Court of Justice in KME Germany [5] and Chalkor [6], decided on 8 December 2012. Even more recently, in its judgment of 18 April 2012 in Posten Norge [7], the EFTA Court has considered the scope of its judicial review, again against the background of Article 6(1).

This foreword discusses the central issue raised by these cases, namely how far the EU system for judicial review of decisions by the European Commission imposing fines in competition cases is compatible with Article 6(1) of the ECHR [8]?

Article 6(1) ECHR

Article 6(1) of the ECHR provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law"

By virtue of Article 47 of the Charter of Fundamental Rights of the European Union, now formally part of the Treaty on European Union, the guarantees offered by Article 6(1) ECHR are explicitly recognised in EU law [9].

It is established that decisions of the Commission imposing fines in competition cases involve a "criminal charge" for the purposes of Article 6(1), not least because the purpose of such fines is to punish and deter" [10]. It is also well established that, to satisfy Article 6(1), the tribunal determining the "criminal charge" must not only be independent and impartial, but must also have full jurisdiction to examine and determine all questions of fact and law relevant to the dispute before it [11].

With criminal offences, Article 6(1) normally requires that the matter is adjudicated upon at first instance by an independent and impartial tribunal having full jurisdiction to examine the facts and the law. However, in Jussila [12] the European Court of Human Rights held that there may be a distinction between "hard core" criminal offences and other "criminal" offences "not strictly belonging to the traditional categories of criminal law", citing administrative penalties arising from customs law, competition law or tax surcharges, where the criminal-head guarantees "will not necessarily apply with their full stringency" [13]. In KME Germany, Advocate General Sharpston confirmed that it is sufficient for Article 6(1) purposes if the decisions of the Commission are subject to review by a Court having the full jurisdiction required by 6(1). In other words, the fact that the Commission, rather than the Court, is the initial decision maker is not necessarily incompatible with Article 6(1), provided that the jurisdiction of the General Court complies with Article 6(1). Indeed, the General Court itself has held that the Commission is not a "tribunal" for the purposes of Article 6(1), but that the judicial control exercised by the General Court over the Commission’s decisions satisfies the requirements of Article 6(1) [14].

The essential question is whether Menarini and the other recent cases mentioned above definitively lay to rest any suggestion that the EU system of judicial review does not comply with the "full jurisdiction" requirement of Article 6(1) ECHR.

The EU System

As is well known, potential infringements of the competition rules under Articles 101 and 102 TFEU are investigated and prosecuted under Regulation 1/2003 [15] by the European Commission, which may by decision impose fines of up to 10 per cent of worldwide turnover [16]. The Commission thus combines the function of investigation, prosecution and decision making [17]. In recent years fines imposed by the Commission have increased exponentially, often amounting to many millions, even a billion, euros [18].

A review of the Commission’s decision lies to the General Court, formerly the Court of First Instance, of the European Union under (what is now) Article 263 TFEU on grounds of:

"lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or any rule of law relating to its application, or misuse of powers".

This text, which mirrors Article 173 of the Treaty of Rome, adopted in 1957, and Article 33 of the ECSC Treaty of 1951 [19], envisages a "control of legality" along lines well known in the droit administratifsystems of continental Member States. A control of legality, akin in common law systems to "judicial review", is essentially based on specific grounds such as lack of jurisdiction, procedural error, error of law, absence or default of reasoning, or manifest error of appreciation. Control of legality is thus conceptually distinct from, and more limited than, a full "appeal on the merits" where the appellate court has full jurisdiction to review the facts, the law and all aspects of the overall correctness of the decision.

It is true that the distinction between these two kinds of judicial control is not always clear cut in practice, since an intensive "control of legality" may well shade into a review which is virtually indistinguishable from an "appeal on the merits". However, conceptually the two approaches are significantly different.

One feature of the control of legality approach under the EU Treaty is that the only option available to the General Court, if satisfied that an error has been made by the Commission, is to quash the decision, in whole or part. The General Court cannot substitute its own decision or "re-formulate" the Commission’s decision. Similarly, on the control of legality approach, it is not enough if the General Court disagrees with the Commission on an issue which the Commission enjoys some margin of appreciation; it must be demonstrated that the decision is in that respect manifestly wrong before the decision can be quashed [20].

There is, however, an important exception to the above, provided by (what is now) Article 261 TFEU, whereby regulations may give the General Court "unlimited jurisdiction with regard to the penalties provided for in such regulations". That is implemented in Article 31 of Regulation 1/2003:

"The General Court shall have unlimited jurisdiction within the meaning of [Article 261 TFEU] to review decisions whereby the Commission has fixed a fine or penalty payment; it may cancel, reduce or increase the fine or penalty payment imposed".

The traditional view is that this "pleine juridiction" under Article 261 TFEU merely gives the General Court power to adjust the amount of the fine: it does not in itself alter the scope of the "control of legality" review provided for by Article 263 TFEU [21]. Another view, however, is that the concept of "pleine juridiction" as regards the fine implicitly empowers, or should be interpreted as empowering, the General Court to go fully into all aspects of the underlying merits, rather than merely exercising a limited control of legality on the substance of the matter [22].

Complex economic assessments

The question whether review by the General Court under Articles 261 and 263 TFEU complies with the full jurisdiction over fact and law required by Article 6(1) ECHR has many aspects, but one at least may be mentioned here, namely the question of "complex economic assessments". There is a voluminous jurisprudence to the effect that:

"…the Court hearing an application for annulment of a decision applying Article 81(1) EC must undertake a comprehensive review of the examination carried out by the Commission, unless that examination entails a complex economic assessment, in which case review by the Court is confined to ascertaining that there has been no misuse of powers, that the rules on procedure and on the statement of reasons have been complied with, that the facts have been accurately stated and that there has been no manifest error of assessment of those facts…" [23].

While this jurisprudence originates from, and has frequently been invoked, in cases not involving fines – for example decisions under Article 101(3) or rejections of complaints [24] it has also applied in cases involving substantial fines. Thus, for example, in its Microsoft judgment [25] - which involved a fine of some €497 million – the General Court said:

"the review of complex economic appraisals made by the Commission is necessarily limited to checking whether the relevant rules on procedure and on stating reasons have been complied with, whether the facts have been accurately stated and whether that has been any manifest error of assessment or a misuse of powers…

Likewise, in so far as the Commission’s decision is the result of complex technical appraisals, those appraisals are in principle subject to only limited review by the Court, which means that the Community Courts cannot substitute their own assessment of matters of fact for the Commission" [26].

The Court however added:

"… while the Community Courts recognise that the Commission has a margin of appreciation in economic or technical matters, that does not mean that they must decline to review the Commission’s interpretation of economic or technical data. The Community Courts must not only establish whether the evidence put forward is factually accurate, reliable and consistent but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it" [27].

Despite this caveat regarding the accuracy and completeness of the data relied on, it remains the case that the Commission a margin of appreciation in the assessment of economic and technical issues, as to which the test is manifest error. That was the test stated to apply in Microsoft [28]. In Amman, to take only one other example, the Court reiterated earlier jurisprudence to the effect that the question of "the relevant market" was a matter of complex economic assessment. Having examined the evidence, the General Court decided that the Commission "did not commit a manifest error of assessment" [29].

It thus seems clear that, in matters deemed to be "complex economic assessments", the General Court has in the past accorded a degree of deference to the Commission [30]. Whether such an approach is compatible with the full jurisdiction required by Article 6(1) ECHR is a key question. At the very least "the boundary between those issues which involve complex economic assessment leading to less intense judicial review and those subject to full appellate scrutiny is not altogether clear" [31].

What light, if any, does recent case law throw on these issues?

Menarini

In Menarini the company had been fined €6 million by the Italian Competition Authority for participating in a cartel on diagnostic equipment. It contested both the facts and the amount of the fine. Menarini applied to the competent Italian administrative court to annul the decision. Under its statutes that court exercised a control of legality in administrative law, rather than full jurisdiction, and dismissed the case. Subsequent applications to the Conseil d’Etat and Cour de Cassation were also dismissed. Menarini then applied to the European Court of Human Rights, arguing that the matter had never been considered by a court having full jurisdiction and that, in consequence, there had been a violation of Article 6(1).

In its judgment, the second Chamber of the ECtHR confirmed first, that Article 6(1) was engaged on the basis that the sanction was penal and that, in consequence, a criminal charge was involved [32]. The Court then held that it was not incompatible with Article 6(1) for the sanction to be imposed initially by an administrative authority, provided that the decision was subject to control by a court having full jurisdiction. Such a court should have power to decide on all aspects of law and fact and if necessary reformulate the decision on both facts and law [33].

Noting that the practical application of Article 6(1) may vary in the case of matters which are not penal "in the strict sense", the majority of the chamber then held that the Italian administrative tribunals in question were in fact able to consider all the elements of fact and law, and determine if the competition authority had used its discretionary powers in an appropriate fashion. According to the majority, this went further than a simple control of legality: the courts in question could examine if the choices made by the authority were well founded and proportionate, and verify technical evaluations. Those courts moreover had full jurisdiction over the sanction, which the Conseil d’Etat in particular had fully considered. Hence Article 6(1) was not infringed [34].

This approach, however, was not acceptable to Judge Pinto de Albuquerque. In a powerful dissenting opinion, Judge Pinto de Albuquerque held that the texts governing the different tribunals, and their judgments, made it clear that they could not, and had not, exercised the full jurisdiction required by Article 6(1), merely conducting the "weaker" control of legality. In practice, said Judge Pinto de Albuquerque, under the Italian system the facts were established by the competition authority and the parties had little chance of contesting them before the courts. Fundamental concepts such as the relevant market, abuse of dominance or the notion of agreements restricting competition, were effectively outside the effective control of the courts, who in practice "had to bow before the all-powerful administrative authorities". In the instant case, moreover, the Italian courts had merely gone through the motions of controlling the decisions, often simply repeating the findings of the competition authority. That approach was not compatible with Article 6(1) [35].

It is interesting that, in a separate note, Judge Sajó said that he agreed with Judge Pinto de Albuquerque in principle; the only reason he had voted with the majority was that the Conseil d’Etat had in fact examined the merits of the caseó in sufficient detail to comply with Article 6(1), whilst expressly disclaiming any jurisdiction to do so(!). What mattered for Judge Sajó was whether the applicant’s rights were in fact protected, irrespective of the texts [36].

KME Germany and Chalkor

The issue in these two cases, decided by the Court of Justice in December 2012 [37], focussed on whether the General Court had exercised adequate judicial control over the fines imposed by the Commission, or whether, in effect, it had merely rubber-stamped the exercise of the Commission’s discretion as being within the relevant Guidelines. These cases did not therefore directly concern the issue of "complex economic assessments", since there was no appeal on the merits, only on the amount of the fines. Nor was there any doubt that, under Article 261TFEU, the General Court had full jurisdiction over the sanctions imposed. The question was whether that jurisdiction had been exercised in any effective way, or whether the General Court had simply deferred to the discretion of the Commission.

However, in its judgments the Court of Justice appears to have consciously gone beyond considering Article 261 TFEU and considered the scope of review under Article 263 TFEU. The Court confirmed the jurisprudence that, with regard to the control of legality :

"whilst in areas giving rise to complex economic assessments, the Commission has a margin or discretion with regard to economic matters, that does not mean that the Courts of the European Union must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must those Courts establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it" [38].

Importantly, the Court of Justice stressed that while in an adversial system the Courts’ task was to rule on the basis of the pleas and evidence put forward by the applicant,

"the Courts cannot use the Commission’s margin of discretion - either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors - as a basis for dispensing with the conduct of an in-depth review of the law and the facts" [39].

In addition, the Court again emphasised that in fines cases the review of legality under Article 263 is supplemented by the unlimited jurisdiction, under Article 261 TFEU and Article 31 of Regulation 1/2003, which empower the General Court

"in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed" [40].

The Court of Justice concluded:

"The review provided for by the Treaties thus involves review by the Courts of the European Union of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. The review of legality provided for Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle of effective judicial protection in Article 47 of the Charter" [41].

On the facts the Court found that the General Court had in fact exercised a full jurisdiction as regards the amount of the fine [42].

Posten Norge

Finally, in Posten Norge [43], a case of abuse of dominance under Article 54 of the EEA Treaty in which Norway Post was fined some €12 million, the EFTA Court considered the scope of its control of legality jurisdiction [44] in the light of Article 6(1). In that case the applicant did not challenge market definition, dominance, or the facts of the conduct alleged. The only issue was whether that conduct had been correctly characterised as abusive by the EFTA Surveillance Authority (ESA). The ESA argued that its analysis constituted a complex economic assessment which must be upheld unless the applicant could demonstrate a manifest error of appraisal.

The EFTA Court held, first, that the charge in question could not be considered a criminal charge "of minor weight". In consequence, the guarantees of Article 6(1) had to be respected in substance [45]. The Court, however, then cited the existing jurisprudence that in matters of complex economic assessments, its review was necessarily limited to verifying the correctness of the procedure, the accuracy of the facts and whether there has been any manifest error of assessment or misuse of powers. This limitation of the Court’s powers of review was inherent in the concept of a review of legality [46]. However, the Court was required to ensure that the evidence relied on, even of an economic nature, was accurate, reliable, and complete, and supported the conclusions drawn [47].

Recognising that Article 6(1) ECHR required that the assessment of the ESA’s decision must be undertaken by a Court with full jurisdiction to quash the decision in all respects on questions of fact and law, the Court held:

"ESA cannot be regarded to have any margin of discretion in the assessment of complex economic matters which goes beyond the leeway that necessarily flows from the limitations inherent in the system of legality review" [48].

The Court continued, citing also the presumption of innocence,

"although the Court may not replace ESA’s assessment by its own and, accordingly, it does not affect the legality of ESA’s assessment if the Court merely disagrees with the weighting of individual factors in a complex assessment of economic evidence, the Court must nonetheless be convinced that the conclusions drawn by ESA are supported by the facts" [49]

The Court then concluded:

"Accordingly, the submission that the Court may intervene only if it considers a economic assessment of ESA to be manifestly wrong must be rejected [50].

Analysis

To begin with Posten Norge, the rejection by the EFTA Court of the submission that the EFTA Court may only intervene is a complex economic assessment on the basis of manifest error is certainly in line with the requirements of Article 6(1) and is warmly to be welcomed; but at first sight it is not quite obvious how the Court arrived at that conclusion on the basis of the text giving it jurisdiction and the jurisprudence that it cites. That, it is submitted, typifies the problem facing the EU and EFTA Courts, which is as follows.

As long as the Commission (or the ESA) combine the functions of prosecution and decision making, Article 6(1) of the ECHR requires review by a court having full jurisdiction. However, the text of Article 263 TFEU (and its EFTA equivalent) plainly envisages a control of legality, not full jurisdiction. Moreover, that conclusion is amply supported by long standing jurisprudence, emphasising in particular the deference to be accorded to the Commission in matters of complex economic and technical assessments.

It is thus quite difficult to disagree with Judge Pinto de Albuquerque that on essential matters such as, for example, the definition of the relevant market, the concept of abuse and the scope of what is a "restriction of competition", to take only a few examples, the control of legality falls short of the exercise of a full appellate jurisdiction. According to the EU jurisprudence, such matters constitute complex economic assessments, amenable only to a manifest error test.

That the EU should find itself in this position is wholly understandable. Article 263 TFEU dates back to the 1950s when circumstances were very different and fines running into millions or even billions would have seemed inconceivable. As has been pointed out, the jurisprudence on "complex economic assessments" originates in cases not involving fines [51]. Arguably the extension of that jurisprudence to the penal sphere is in any event contrary to principle, on the grounds that "criminal" liability created on the basis of administrative action without full judicial oversight is itself an affront to fundamental rights [52]. But that is nonetheless the position in which we find ourselves in the EU.

So what then is the best approach? For the purpose of analysis, one may identify three possibilities.

The first and most radical possibility is for the Commission to cease to be the initial decision maker and for findings of infringement and penalty to be made by a court, with the Commission acting as prosecutor. Detailed analysis of this option is outside the scope of the present discussion, but the point is this: in fines cases, one cannot under Article 6(1) ECHR have both the combination of investigator, prosecutor and decision maker in one administrative body, and a court which lacks full jurisdiction over all aspect of the matter. A choice must be made.

The second possibility is to follow the majority in Menarini and, apparently, both the Court of Justice in KME Germany and Chalkor and the EFTA Court in Posten Norge: namely to hold that, despite the governing texts which envisage only a control of legality, in all the circumstances the Court’s power to review is sufficiently wide to comply with Article 6(1) ECHR, at least in practice.

However, this possibility is open to several objections. First, as pointed out by Judge Pinto de Albuquerque, the majority view in Menarini ignores the plain wording of the texts governing the administrative jurisdictions in question. A similar objection applies in the EU and EEA. Article 261 TFEU and its EFTA equivalent simply do not envisage a full jurisdictional control. Secondly, the argument that the control exercised in practice, irrespective of the texts, is sufficient to comply with Article 6(1) ECHR is unpersuasive: a situation in which the decisional practice of the Courts diverges from the texts governing their jurisdiction is legally unsound. A right as fundamental as the right to a Court of full jurisdiction cannot be founded on ambiguity, but should be anchored, fairly and squarely, in the founding texts of the Treaties. Thirdly, whatever gloss may be found in the jurisprudence seeking to emphasise the intensity of the Court’s review over the facts and law, and the obligation to give reasons, it is simply inherent in the concept of the control of legality that it is a lesser form of review than full jurisdiction. Under a control of legality approach, it is inevitable that the Commission will always retain a substantial margin of appreciation.

There is admittedly some force in the argument that, in practice, and whatever the wording of Article 263 TFEU, the intensity of review by the General Court is capable of reaching a standard sufficiently close to a full jurisdiction appeal to satisfy the requirements of Article 6(1) in the specialised field of competition law. Again, however, what may be achieved in practice, often heroically but inevitably not always consistently, is not, it is submitted, a proper substitute for the clear incorporation of full jurisdiction into the legal order of the EU [53].

As to the argument that some variable geometry is permissible under Article 6(1) and that competition law is not, strictly speaking criminal, it is true that at EU level the sanctions do not (yet) affect the liberty of the individual, and are imposed only on legal, as distinct from natural, persons. However, cases such as Jussila (a tax surcharge of €300) are very far from the fines running into millions which are a feature of modern competition law. In addition, the imposition of a heavy fine by the Commission increasingly carries a considerable stigma, both for the undertaking and the employees involved, and may well result in loss of employment for the latter; in some jurisdictions the conduct in question is formally criminalised; and there is the increasing likelihood of "follow on" civil actions. In short, from various points of view the cumulative consequences of a fine imposed by the Commission may be at least as severe, if not more so, than those resulting from some kinds of conduct traditionally regarded as criminal. Any relaxation of the rigour of Article 6(1) ECHR for competition cases would not, it is submitted, be justified in modern circumstances.

The third possibility is to face up to the fact that, in fines cases, Article 263 TFEU, even when supplemented by Article 261 TFEU, is neither compatible with Article 6(1) ECHR nor adequate in modern conditions, given in particular the severity of the fines imposed. Once this is accepted, it should not, it is submitted, be difficult to resolve the problem. For example, Article 261 TFEU and Article 31 of Regulation 1/2003 could be amended to read respectively:

"Regulations … may give the Court of Justice unlimited jurisdiction with regard to all
 aspects of the decisions imposing the penalties provided for in such regulations".

"The Court of Justice shall have unlimited jurisdiction to review all facts and mattersin
decisions whereby the Commission has fixed a fine or periodic penalty payment. It may reformulate the decision or cancel, reduce or increase the fine or periodic penalty payment imposed".

In the meantime, it is respectfully suggested, the traditional judicial language of deference in respect of such matters as complex economic assessment and the Commission’s discretion as regards the fine might perhaps be reduced or qualified, to reflect the intensity of the review in fact carried out: see e.g. Posten Norge. One issue where such an approach could be adopted is the issue of relevant market. Such an issue is not one of "policy". It may be "complex" and it may be "economic"; but in modern conditions there would seem little justification for affording the Commission a margin of appreciation on a matter such as the definition of the relevant market that may be central to the imposition of a penal sanction.

Conclusion

It would appear, in the light of the apparent divergence between the requirements of Article 6(1) ECHR and the EU Treaties and jurisprudence, that neither Menarini nor the other judgments discussed above can be regarded as settling the debate. Menariniis not a judgment of the Grand Chamber, and the dissenting judgment in that case gives much food for thought. Which, if any, of the possibilities outlined above is to be preferred is a matter for others to judge; but the third possibility would appear at first sight to be a clear-cut and transparent solution.

Footnotes

[2Ibid, p.1.

[3Ibid, p.4. To the same effect, see Ian S. Forrester "A Bush in Need of Pruning: the Luxuriant Growth of "Light Judicial Review" in Clause-Dieter Ehlermann and Mel Marquis, eds, European Competition law Annual 2009: Evaluation of Evidence and its Judicial Review in Competition Cases, Hart Publishing, 2010. See also Ian S. Forrester, "Due process in EC Competition cases: A distinguished institution with flawed procedures (2009) 34 E L Rev 817 and the literature there cited. The author identifies three features of the Commission’s procedures which in his view are open to particular criticism: that the decision is taken by 27 Commissioners, who are political appointees; that there is no hearing before the decision-maker, only before officials; and that the case team combines investigation and decision making functions with the consequent risk of "confirmation bias". These issues are outside the scope of this foreword. Aspects of the Commission’s procedure are challenged as contrary to Article 6(1) ECHR in Case T-56/09 Saint Gobain Glass France v. Commission, pending.

[4ECtHR, A. Menarini Diagnostics srl v. Italy, second section, 27 September 2011. See generally Business as Usual after Menarini by Marco Bronckers and Anne Valery, Mlex Magazine, January-March 2012, pp 44-47. I am grateful to Professor Bronckers for his thoughts on these issues. See also, Pascal Cardonnel, The European Court of Human Rights rules on standard of judicial review on cartel decisions adopted by national competition authorities (Menarini Diagnostics v. Italy), Concurrences N° 4-2011.

[6Case C-386/10 P Chalkor AE Epexergasias Metallon v. Commission, judgment of 8 December 2011.

[8Note also the specific issue of dawn raids, following Société Canal Plus et autres v. France, ECtHR, fifth section, 21 December 2010. Apart from dawn raids, other issues not discussed here where the ECHR may prompt reconsideration of existing jurisprudence include parent/subsidiary liability, self incrimination, the scope of legal professional privilege, and the handling of witness evidence. See Joseph Vogel, The European Court of Human Rights rules against the French search and seizure procedure prior to the 2008 reform, including the transitional system (Canal +, Primagaz), 21 décembre 2010, e-Competitions n° 34093.

[9The Charter was proclaimed in Nice on 7 December 2000 but became formally part of the Union on the entry into force of the Treaty of Lisbon on 1 December 2009: Article 6 TEU. But it has been well established for many years that the principles of the ECHR form part of the Union’s legal order: see e.g. Case C-235/92P Montecatini v. Commission [1999] ECR I-4539. See also Articles 41, 48, 49, 50 and 51 of the Charter, and recital (37) to Regulation 1/2003.

[10See e.g. the opinion of Advocate General Sharpston in KME Germany, cited above, at paragraphs 64 et seq, and the cases there cited, applying the principles of Engels, ECtHR 8 June 1976, Series A no. 22 §82.

[11Constant jurisprudence e.g. Le Compte, Van Leuven and De Meyer v. Belgium, 23 June 1981, Series A, number 43 p.23 §51(b); Schmautzer v. Austria1996 21 ECHR e1, 536;Chevrol v. France, 13 February 2003, CEDH 2003-III, §77; Menarini, cited above, at §§59, 61 and dissenting judgment of Judge Pinto de Albuquerque, §8.

[12See Jussila v. Finland no. 73053/01 ECHR 2006-XIII.

[13Ibid §43. Note that Jussila involved a tax surcharge of some 300 euros imposed following an inadequate VAT return. In §43 of the judgment the ECtHR referred to "criminal cases which do not carry any significant degree of stigma".

[14E.g. Case T-348/94 Enso Espanola v. Commission [1998] ECR II-1875 §§55-65. See also Case T-156/94 Aristain v. Commission [1999] ECR II-645 §§27-30.

[15Council Regulation (EC) n° 1/2003, of 16 December 2002, on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJEU L 1, 4 January 2003, p. 1-25).

[16Art 23 of Reg. 1/2003.

[17See Arts 17-21 of Reg. 1/2003.

[18Note, among others, fines of €896 million on Saint Gobain in 2008 (alleged car glass cartel); €899 million in 2008 on Microsoft (alleged failure to comply with remedies) and €1.06 billion on Intel in 2009 (alleged abuse under Article 102).

[19Art 33 of the ECSC Treaty purported further to limit the Court’s jurisdiction in cases involving the "evaluation of the situation, resulting from economic facts and circumstances" to manifest error or misuse of powers. Although not carried forward into the EC/EU Treaties, echoes of this kind of formulation have regularly found their way into the jurisprudence, as seen below.

[20See the discussion of "complex economic assessments" below. But note Posten Norge, also discussed below.

[21This seems to be the view of Advocate General Sharpston in her opinion in KME Germany, cited above, at paragraph 70.

[22See Forrester, "A Bush in Need of Pruning", cited above, pp. 37-41.

[23Case T-168/01 GlaxoSmithKline v. Commission [2006] ECR II2969, §57; upheld on appeal Case C-501/P, judgment of 6 October 2009 at §146, accepting the test for review of complex economic assessments as formulated by the General Court.

[24See Bellamy & Child, European Community Law of Competition, 6th edition, edited by Sir Peter Roth and Vivien Rose, at §13-227.

[26Ibid §§87-88. See also e.g. §379, §482.

[27Ibid §89. This formulation, drawn from the merger case C-12/03P Commission v. Tetra Laval [2005] ECR I-987, paragraph 30 has apparently become a standard gloss on the traditional "complex economic assessment" jurisprudence. See e.g. Case T-446/05 Amann & Söhne v. Commission,28 April 2010 at §54, §131; Case T-321/05 Astra Zeneca v. Commission, 1 July 2010, at §33 (on appeal Case 457/10P). See also Cases C-204/00P etc Aalborg Portland Cement [2004] ECR I-123, §279 (price information exchanges).

[28See e.g. §§380, 391, 530, 557 and 649 of the judgment.

[29n.26 above, at §54 and §88.

[30Note also Case C-441/07P Alrosa v. Commission, judgment of 29 June 2010, where the Court of Justice upheld the opinion of Advocate General Kokott at §84 to the effect that a manifest error of assessment exists only where, in the light of the evidence ’no reasonable basis’ for the Commission’s position can be discerned. But this case did not concern fines. See also Posten Norge, discussed below.

[31Bellamy & Child, op.cit, at §13.227 fn 1176.

[32See Menarini, op.cit, at §§28-45.

[33§59, citing the well established jurisprudence referred to above.

[34§§63-67.

[35Dissenting opinion, §§5-9. Judge Pinto de Albuquerque noted, however, that the Italian legislation was being amended to give administrative tribunals full control over the merits where administrative sanctions were imposed: §12.

[36Concurring opinion of Judge Sajó. In KME Germany, Advocate General Sharpston also emphasised the importance of what happened in practice, rather than in theory: Opinion at §§73, 83.

[37nn 5 and 6 above.

[38See KME Germany at §121.

[39§129. The Court also stressed the importance of the obligation to give reasons: §128.

[40§130.

[41§133.

[42At §136 the Court of Justice said: "…although the General Court repeatedly referred to the ’discretion’, the ’substantial margin of discretion’ or the ’wide discretion’ of the Commission, including in paragraphs 35 to 37, 92, 103, 115, 118, 120 and 141 of the judgment under appeal, such references did not prevent the General Court from carrying out the full and unrestricted review, in law and in fact, required of it."

[43Judgment of 18 April 2012, n.7 above.

[44See Article 36 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.

[45Judgment, §90.

[46§§95-98.

[47§99.

[48§100.

[49§101.

[50§102.

[51Finding its origin in such cases as Cases 56 and 58/64 Consten and Grunding v. Commission [1966] ECR 229 (exception under Article 85(3) and Case 42/84 Remia v. Commission [1985] ECR 2543 (vendor/purchaser covenant) the question whether this jurisprudence is transposable to penal cases does not seem to have been discussed in the jurisprudence.

[52The issue is sometimes further complicated by the language used in judgments: even though the General Court may in fact have intensively reviewed the matter in question, the language used and jurisprudence cited may sometimes be read as disclaiming any intention to do so: see for example KME Germany at §109 and Menarini. This gives rise to confusion, and uncertainty both for the parties and the Courts. Valiant attempts to "square the circle" by departing in practice from what the Treaty says are not, it is submitted, an adequate or long term solution.

[53A revision of the jurisprudence to give an extensive interpretation to Article 261 TFEU might be an alternative solution.

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