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Giving teeth to the General Court’s unlimited jurisdiction to review competition law fines: Advocate General Wathelet’s Opinion in Telefónica

Ian S. Forrester QC, LLD, James R.M. Killick, Dr. Assimakis Komninos, Pontus Lindfelt, Jacquelyn F. MacLennan, Mark D. Powell, Axel P. Schulz, and Kai Struckmann, White & Case Antitrust Alert, October 1, 2013

See Ian Forrester QC's resume See Mark D. Powell's resume See Axel Schulz's resume See Assimakis Komninos's resume See Pontus Lindfelt's resume See Jacquelyn F. MacLennan's resume See Kai Struckmann's resume

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The level of fines imposed by the European Commission in competition cases has attracted controversy for more than ten years. The often deferential approach of the European courts to hearing appeals has also been criticised, but in many cases the courts have largely left untouched the Commission’s exercise of its discretion in setting fines. In one recent case, Chalkor, the ECJ indicated some helpful general principles, but the courts have remained unpredictable in how they reviewed Commission fines. However, the movement towards effective judicial review has received a boost from a remarkable Opinion issued on 26 September 2013 in Telefónica. Advocate General Wathelet calls on the General Court to exercise fully its unlimited jurisdiction when reviewing the proportionality of fines. The opinion is written in unusually stringent terms.

Irrespective of whether the Court of Justice ultimately follows AG Wathelet’s non-binding Opinion in the present case, it confirms the importance of robust judicial scrutiny in light of the European Convention of Human Rights and the Charter of Fundamental Rights, especially given the ever increasing level of penalties.

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