Alexander Kornezov[1]

The article draws up a catalogue of the reviewable acts and failures to act in European antitrust law.

Naturally, the action for annulment laid down in Article 263 TFEU is the most frequently used remedy in EU anti-trust law. The Commission adopts a wide range of measures both in the course of and at the end of its investigation. The article puts forward a categorisation of those acts into 3 groups for the purposes of determining their reviewable nature within the meaning of article 263 TFEU, namely: (1) preparatory acts, intended to pave the way for the final decision on the substance of the case; (2) acts which are themselves the culmination of a special procedure distinct from that intended to permit the Commission to take a decision on the substance of the case and which produce binding legal effects; (3) and acts which are explicitly qualified as reviewable acts in EU secondary legislation. While the first type of acts is non-reviewable for the purposes of Art 263 TFEU, the second and the third ones are. The article then examines in some detail the various acts adopted by the Commission within each of the above-mentioned three groups and explains the reasons why they should or should not be regarded as reviewable acts in light of the fundamental right to effective judicial protection.

The article also looks at the reviewability of “soft law” instruments. It argues, in particular, that although in theory, these various soft law instruments bind only the Commission, in practice they produce legal effects vis-a-vis the undertakings, which should warrant full judicial review of their legality.

The article examines as well the actionable failures to act of the Commission in the light of Article 265 TFEU. While actions for failure to act are rare in anti-trust proceedings, they can nevertheless be a useful tool to compel the Commission to take action in certain specific circumstances.

[1] Judge at the General Court of the European Union. The views expressed are personal.