Judicial Review and the Rule of Law in the Eu Competition Law Regime After Alrosa

"Regulation 1/2003, or the “Modernisation Regulation”, as it is popularly called, significantly extended the powers of the Commission in the enforcement of EU competition rules."

The overarching argument of this article is that the judicial review standards followed in Alrosa fail to protect the rule of law. In particular, in this case the European Court of Justice followed an overly deferential manifest error standard in the judicial review of the proportionality of Commission’s commitment decision. As a result, the judgment of the Court of Justice brings a manifest disproportionality standard to the commitments regime which does not provide sufficient safeguard against a potential misuse of powers. Moreover, this judgment signals that the courts may follow a similar hands-off approach in future cases involving the Commission’s extensive discretion. Such a deferential judicial review appears all the more worrying from a general rule of law perspective, due to the powerful position obtained by the Commission with the modernisation both as policy maker and enforcer in the EU competition law regime."