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Georg Berrisch, Dec 31, 2014
In its Menarini ruling, the European Court of Human Rights held that fines imposed by the Italian antitrust authority for the violation of competition law are criminal charges and that, consequently, the requirements of Article 6 of the European Convention of Human Rights apply. However, ECtHR did not consider it incompatible with Article ECHR that these fines were adopted by an administrative authority and not an “independent and impartial tribunal established by law,” because, in the view of the ECtHR, it was sufficient that the Italian courts exercised a full review-and not just a legality control-of the fining decisions.
In Schindler, the Court of Justice of the EU, referring to the Menarini ruling, used essentially the same reasoning in finding that the EU’s system of antitrust enforcement is not contrary to Article 47 of the Charter-and hence Article 6 ECHR. Referring to its earlier ruling in Chalkor, the CJEU observed that the EU courts review both the facts and the law and have the powers to assess the evidence, to annul the contested decisions, and to alter the fine. It further held that, when reviewing the legality of a Commission decision imposing fines for violation of the EU’s competition rules, the EU courts cannot use the Commission’s discretion, either as regards the choice or the assessment of the factors used to set the fine, as a ground for not conducting of an in-depth review of the facts and the law.
Much has-and can be-said about the merits of both Menarini and Schindler. The purpose of this short note, however, is not to enter into that debate but rather to comment on some specific issues related to the judicial control by the EU courts of the European Commission’s decisions imposing fines for infringements of Articles 101 and 102 TFEU. Indeed, it seems fair to say that, as a result of Menarini and Schindler, the compatibility of the EU system of antitrust enforcement with Article 6 ECHR and Article 47 of the Charter depends on the degree of judicial control exercised by the EU courts. In this respect, the work of the General Court is of particular importance because it is the sole “independent and impartial tribunal” assessing the evidence relied on by the Commission in establishing an antitrust infringement and setting a fine.