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The judicial review of the Competition Authorities’ decisions

This article examines the scope and procedures of judicial review in competition law, including issues of evidence and fine calculation. It discusses relevant case law and guidelines, and explores the factors taken into account by the courts in their review. The article also analyzes the principles of non-discrimination and reformatio in peius.

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The judicial review of the Competition Authorities’ decisions

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  1. The judicial review of the Competition Authorities’ decisions Maria Gkana Irini Spanaki Georgia Skiada

  2. Scope of review Review on the merits against Competition Authority (CΑ) decisions -Compliance with Menarini - Non-application of art. 6 ECHR in the procedure before CA

  3. Impartiality • President of the CA • Relationship of CA servant with the director of an enterprise under scrutiny • Criminal conviction of a CA officer for extortion of an enterprise under scrutiny • Leak of case facts to the press

  4. Right to prior hearing • Late invitation • Lack of proposal in the report with regard the height of the fine to be imposed Access to documents

  5. Issues of evidence in anticompetitive agreements • Evidential sufficiency of pointers • Evaluation of evidence - Global appreciation of evidence - The use of presumptions (faisceau d’ indices) - Presumption of innocence

  6. Issues of evidence in anticompetitive agreements • -Case Law • -CoS 2780/2012 -Vertical agreement between a supermarket and a supplier • -CoS 2365/2013 -Horizontal agreementbetween milk processors • -CoS 1933/2013 -Concerted practice betweensupermarkets • -CoS 2774/2014 -Concerted practice betweenmilk processors • -CoS 3858, 3859/2014 - Concerted practice betweenjet fuel suppliers

  7. Individual evidence • Witnesses - The concept of a “third party” - Common testimony - Self-incrimination • Documentary evidence • Leniency programme

  8. Fine calculation • The framework • EU legislation (Regulation 1/2003) • EC Guidelines (2006) • Greek legislation (Laws 703/1977, 3959/2011) • CA Guidelines (2006)

  9. The application • Fine calculation by the CA • Procedure • CA Report • Administrative courts’ case-law • Factors taken into account • Guidelines • Basic amount of the fine • Aggravating factors • Mitigating factors • Legal maximum (“plafond”)

  10. Judicial review by the Appellate Court • Scope of review (on the merits) • Reasons for differentiation • New factors-reformatio in peius • Non-discrimination principle

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