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Judicial Review and the Rule of Law in the EU Competition Law Regime after Alrosa (European Competition Journal, 2011)

Abstract: Regulation 1/2003 granted the European Commission generous enforcement powers which attribute a wide discretion to the Commission and, consequently, could be misused in different ways. Effective judicial review is essential for the prevention of such potential misuse of powers and for the protection of the rule of law. From this perspective the recent Alrosa case appears particularly important, as it reveals how the EU judicature approaches to the Commission’s extended discretion in the post-modernisation EU competition law regime. This article analyses Alrosa and its potential implications from a systemic rule of law perspective. The article finds that particularly the manifest disproportionality standard followed in this case falls short of protecting the rule of law. As a solution, it is argued that measures should be adopted to reduce the information asymmetries that the courts suffer from, so that they could perform effective judicial review without encroaching on the Commission’s discretion.


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