Volume 49 (2012) / Issue 3
Renato Nazzini, 'Administrative enforcement, judicial review and fundamental rights in EU competition law: A comparative contextual-functionalist perspective' (2012) 49 Common Market Law Review, Issue 3, pp. 971–1005
This article examines whether the current institutional framework for the enforcement of EU competition law under Regulation 1/2003 is compatible with the principle of effective judicial protection. This question is answered by developing a test which takes into account, in a structured way, all the contextual factors of the case in the light of the objective pursued by the Legislature in enacting a given enforcement system. Comparative analysis of United States and Canadian constitutional law provides key insights for the development of such a test. This article concludes that the current system under Regulation 1/2003 is unconstitutional insofar as judicial review of Commission decisions by the EU courts is deferential. However, while the current trend is to move to a correctness standard of review across the board, a system in which a competition authority with sufficient safeguards of independence and impartiality of the decision-maker is subject to deferential judicial review in appropriately defined matters is more in line with the institutional balance between the European Commission and the EU courts envisaged by the EU Treaties and Regulation 1/2003, has advantages as a matter of policy over a system in which a court has the duty to review the merits of a first instance administrative decision, and would be compatible with the constitutional standards in force in leading common law systems such as the United States and Canada.
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