The lawfulness and acceptability of enforcement of European cartel law

In 2011, the European Court of Human Rights and the Court of Justice of the European Union rendered two important judgments about the compatibility of an administrative system for the enforcement of competition rules with Article 6 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union (Menarini and KME/Chalkor). Both jurisdictions consider that these systems meet the requirements imposed by these provisions, provided that the decisions taken by the administrative enforcement body are subject to independent judicial review. In a judgment issued in 2012, the EFTA Court provided further clarifications on the nature of the judicial review (Posten Norge). The present article concerns the intensity of this review. It is argued that the review should focus on the specific facts of the case and that the reviewing courts should be cautious when applying abstract concepts and presumptions.