The standard of judicial review in EU competition law enforcement and its compatibility with the right to a fair trial under the EU charter of fundamental rights

Abstract

During the last decade, the evolution of the competition law enforcement has reinvigorated the debate concerning the compatibility of the EU enforcement regime with fundamental rights. In particular, two factors have increased the relevance of the protection of fundamental rights in the context of competition law enforcement: the entry into force of the Lisbon Treaty (incorporating the EU Charter of Fundamental Rights) and the progressive criminalization of competition law enforcement. One of the tensions between competition law enforcement and the protection of fundamental rights concerns the right to a fair trial included in Article 6 of the European Convention of Human Rights (ECHR), as well as in Article 47(2) EU Charter. Due to the technical nature of competition law analysis, the EU and national courts have traditionally granted a certain margin of discretion to the competition authorities. In the aftermath of the Menarini judgment of the European Court of Human Rights (ECtHR), the question is whether such margin of discretion still complies with the requirement of full judicial review introduced in Menarini. This chapter reviews the ongoing debate on compatibility of EU competition law enforcement with the fundamental rights enshrined in the EU Charter (Sect.1), discusses the requirement of full judicial review introduced by the ECtHR in Menarini (Sect. 2), and analyzes the compatibility of the requirement of full judicial review with the standard applied by the Court of Justice of European Union (CJEU) in antitrust cases (Sect. 3). While in its recent jurisprudence the CJEU confirms the compatibility of its standard of judicial review with Article 47 of the EU Charter, it remains unclear whether the ECtHR would achieve the same conclusion in relation to Article 6 ECHR. The issue of compatibility of judicial review with the requirements of fair trial remains open at the national level where the courts often continue to limit their review to the procedural aspects of the competition authority's decisions.