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I. INTRODUCTION
For a long time it has been commonly perceived that the decisions of
the European Commission (the Commission) appraising mergers
have, for many reasons, not been fully subjected to substantive
judicial review. Not only was the appeal process before the European
Court of First Instance (the CFI) seen as extremely lengthy (in any
case, too long for the parties to a merger to have to wait), but the CFI
was also considered to have granted a significant level of discretion—
some would say too much—to the Commission over its application of
economic analysis in merger decisions. However, this familiar
criticism now seems to have been partly addressed by recent
developments, for not only has the CFI introduced a fast-track
procedure to review certain merger decisions, but it has also become
The legal institutions within the EU are: (i) the Council of the
European Union (the Council); (ii) the European Parliament; (iii) the
Court of Auditors; (iv) the European Central Bank (the ECB); (v) the
European Court of Justice (the ECJ); and (vi) the Commission. Of
these institutions, two are of particular interest in the context of this
article: the Commission and the ECJ, and we will now briefly describe
their main activities.
2 KLAUS DIETER BORCHARDT, THE ABC OF COMMUNITY LAW 45 (5th ed. 2000).
The ECJ is not the only judicial authority within the EC. The CFI
was created in 1989, following an amendment to the EC Treaty, to
assist the ECJ in dealing with the constant growth in judicial activity,
which had significantly slowed down the judicial process, especially
in the years leading up to the creation of the single market. The CFI is
not an autonomous EU institution, but rather forms part of the ECJ.
The CEI is, as its name suggests, the court of first resort for judgments
on all direct actions against Community legal acts brought by
individuals and legal entities. Appeals from judgments of the CEI lie
before the ECJ, on points of law only (Article 225(1) of the EC Treaty).
Accordingly, all appeals against decisions of the Commission which
are brought by businesses regarding the application of EC
competition law are first heard by the CFI.
The CFI is currently composed of 25 judges.'" There are no
Advocates-General, but judges may be called to perform the role of
Advocate-General in a particular case if they are not part of the
chamber that is hearing the case in question. The Treaty of Nice,"
which came into force on February 1, 2003, inserts a new Article 225a
in the EC Treaty which allows the Council to create judicial panels "to
hear and determine at first instance certain classes of actions on
proceedings brought in specific areas" with a right of appeal to the
CFI on questions of fact and law.
'» Article 224 of the EC Treaty determines that the CFI shall be
composed of at least one judge per Member State, although the actual
number of judges is determined by the Statute of the Court of Justice.
" Treaty of Nice Amending the Treaty on European Union, the Treaties
Establishing the European Communities and Certain Related Acts, 2001 O.J.
(C80)l.
JUDICIAL REVIEW IN THE EU : 345
Actions that are brought under Article 230 are called "actions for
annulment."'^
Unlike in the majority of international courts, private parties also
have standing before the ECJ and CFI, albeit in restricted
circumstances. The same Article 230 establishes that "[a]ny natural or
legal person may, under the same conditions, institute proceedings
against a decision addressed to that person or against a decision
which, although in the form of a regulation or a decision addressed to
another person, is of direct and individual concern to the former.""
Applicants before the ECJ and CFI are classified according to
three different categories in view of their ability to bring proceedings
before the European Courts: privileged, semiprivileged and non-
privileged applicants. The Member States, the Council, the European
Parliament and the Commission are privileged applicants. "In order
to bring an action under [Article 230] a privileged applicant need only
show that the measure it wishes to challenge is a 'reviewable act', [i.e.,
an act intended to produce legal effects vis-a-vis third parties other
than recommendations and opinions]. It is not necessary for it to
show that it has a specific interest to protect in bringing the action. It
is sufficient that the applicant alleges 'some genuine illegality with
some actual consequences'."'*
The Court of Auditors and the ECB are considered to be semi-
privileged applicants, in that, in addition to showing that the act to be
challenged is a "reviewable act," the semiprivileged applicant must
also show that such act affects the prerogatives of the applicant (for
example, the ECB does not have standing to challenge an act of the
Commission in the competition area). Finally, private parties (either
individuals or legal entities, even if from countries outside the EU)
are considered nonprivileged applicants. Nonprivileged applicants
12 There are also actions for "failure to act" under Article 232, which can
be brought whenever the Commission fails to act, and such failure amounts
to a violation of the EC Treaty. EC Treaty, supra note 5, at 127. Because these
actions are of no relevance for purposes of review of merger decisions in
which the Commission has acted, we shall not discuss them further.
13 EC Treaty, supra note 5, at 126.
'" MARK BREALEY & MARK HOSKINS, REMEDIES IN EC LAW 279 (2nd ed. 1998).
346 : THE ANTITRUST BULLETIN: Vol. 51, NO. 2/Summer 2006
will only have standing before the ECJ or the CFI if they can
demonstrate that the decision to be challenged was either directed at
the applicant, or, although addressed to another person, is of "direct
and individual concern" to the applicant.
In competition cases (both merger and anticompetitive conduct)
this threshold will automatically be met when the applicant is
challenging a decision directed against it. Third parties that may be
affected by a merger may also, under certain circumstances, have
standing to appeal a Commission decision to the CFI. We now turn to
this issue in more detail and examine the overall procedural
framework that applies to legal challenges against the Commission's
merger decisions.
"^ EC Treaty, supra note 5, at 126. See, e.g.. Case T-87/96, Assicurazioni
Generali SpA & Unicredito SpA v. Commission, 1999 E.C.R. 11-203, f 37, and
Case 60/81, IBM v. Commission, 1981 E.C.R. 2639 1 9.
1' See, e.g.. Case T-102/96, Gencor v. Commission, 1999 E.C.R. 11-753
140.
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'8 Joined Cases T-125/97 and T-127/97, Coca-Cola Co. & Coca-Cola Enter, v.
Commission, 2000 E.C.R. 11-1733. In the Coca-Cola case, the applicants appealed a
decision clearing the acquisition of sole control over a bottling joint venture they
had set up with Cadbury-Schweppes on the grounds that the Commission had
wrongly found that the applicants had a dominant position in the relevant
market. The appeal was found to be inadmissible, since the finding of a
dominant position did not have a "binding legal effect" on the applicants. The
CFI noted that as regards future concentrations, the Commission would have to
reassess the existence of a dominant position and could even reach a different
conclusion. In any case, the CFI concluded it would be open to the parties to
appeal any future decision in which a finding of the existence of a dominant
position would be central to a decision to block any future merger.
I" Coca-Cola, 2000 E.C.R. 11-1733 1106.
JUDICIAL REVIEW IN THE EU : 349
However, many would suggest that this view does not reflect the
realities of the Commission's practice. Indeed, in the majority of
merger cases where commitments are given, this is the result of
negotiations between the parties and the Commission. In some cases,
the Commission may even apply pressure on the parties to enter into
commitments that go beyond what the parties would be interested in
proposing. Faced with a clear choice between the likelihood of a
decision launching an indepth investigation of the merger on even its
prohibition, and an alternative involving the giving of significant
undertakings, the parties may wish to opt for the "lesser evil," even if
they believe the transaction should be cleared without any conditions.22
Considering that the available system for judicial review does not
guarantee a ruling in a timely fashion," submitting to the
Commission's pressure for significant commitments may be the only
practical alternative to giving up the merger altogether. In those
situations, the parties may claim that they have not freely entered
into the commitments, but rather were forced into "offering" them.
In this situation, the parties may well wish to appeal to the CFI,
claiming that the Commission's understanding that commitments
were necessary was a "manifest error of assessment," and request a
judgment that would enable the transaction to be cleared without
conditions (or with less significant commitments, as the case may
be).2^ A number of esteemed commentators certainly take the view
that it is possible to appeal the Commission's decision insofar as it
relates to commitments' being given in such circumstances. Bellamy
and Child clearly state that "the parties to a merger that is cleared
Another situation in which the parties may have standing is if, for
example, the Commission refuses to review a transaction stating that
it is not a "concentration with a Community dimension" under the
ECMR. The claim to the CFI would be that the Commission infringed
the ECMR in not reviewing the merger. This was the case before the
CFI in the Generali decision.^^ The Commission did not consider that
the notified joint venture transaction was a "concentration" within
the meaning of the ECMR. Therefore, it did not issue a clearance or
prohibition. The parties appealed to the CFI claiming that the
Commission should have reviewed the transaction as a merger. The
Commission claimed that the parties had no standing on the grounds
that its decision not to review the merger was not a "final" decision;
the arrangement would still be analyzed under Article 81 pursuant to
the proceedings laid down by Regulation 17,3" and only the
conclusion of its analysis of the agreement in question under
Regulation 17 could be considered a decision that could be appealed.
However, the CFI differed with the Commission's view and
concluded that the parties did have standing to appeal, since the
decision to exclude the joint venture agreement from analysis under
the ECMR did affect their legal position. Nonetheless, the CFI rejected
the claims of the applicants on the merits.
other cases in which the restrictions do not involve novel questions of law,
the Commission will not undertake a specific appraisal of any ancillary
restrictions contained in the merger agreement. As a result, in the absence of
any concrete assessment carried out by the Commission, the parties will have
no standing to challenge a clearance decision since the ancillary restrictions
will be deemed to have been approved.
33 Case T-87/96, Assicurazioni Generali & Unicredito v. Commission,
1999 E.C.R. 11-203.
34 Council Regulation 17/62/EEC of Eebruary 21, 1963 Implementing
Articles 81 and 82 of the EC Treaty, 1962 O.J. SPEC. ED. 87.
JUDICIAL REVIEW IN THE EU : 355
Finally, it goes without saying that merger parties will have standing
to challenge decisions to prohibit a merger, as in the Airtours, Tetra Laval,
and Schneider cases.'"' This wiU be the case even if the merger plans are
abandoned before the Commission adopts its formal prohibition
decision. In the MCI case^^ the CFI recognized the standing of merger
parties to bring an action for annulment of the Commission's decision to
prohibit Sprinf s acquisition by MCI (at the time WorldCom), despite the
fact that MCI and Sprint had withdrawn their merger filing one day
before the Commission issued its prohibition decision.
However, it is not only the merger parties themselves who can
seek the annulment of merger decisions, as third parties with an
interest may also have standing under Article 230. In the context of
third party appeals, the merger parties will have the right to
participate in such proceedings as intervening parties.''^
2. STANDING OF THIRD PARTIES Third parties who are affected by a
merger decision may also appeal to the CFI if they can show that the
decision in question is of direct and individual concern to them.
Although third parties will have to overcome an extra hurdle to
successfully submit an appeal against a Commission decision in a
merger, the array of decisions that they can challenge is, surprisingly,
broader than the decisions that can be appealed by the parties to a
merger themselves.*^ Third parties may challenge decisions to clear or
grounds for it to take action under Article [81] or [82] of the Treaty . . .
satisfies the applicant and, by its very nature, can neither change his legal
position nor adversely affect his interests. By contrast, the granting of
negative clearance may prejudice the economic interests of a third party who,
if he demonstrates sufficient legal interest, is entitled to institute proceedings
for annulment before the Court of Eirst Instance in accordance with the
conditions set out in Article [230] of the Treaty." Case T-138/89, Nederlandse
Bankiersvereniging and Nederlandse Verenining van Banken v. Commission,
1992 E.C.R. 11-21811 32.
"" This was the motivation behind the challenges brought by Ineos and
EVC against the Commission's two clearance decisions in Shell/DEA, Case T-
99/02, Shell/DEA, 2003 O.J. (L 15) 35, and BP/E, Case T-103-02, BP/E.ON,
2002 O.J. (L276) 31, which have since been abandoned.
« Case 25/62, Plaumann v. Commission, 1963 E.C.R. SPEC. ED 95. This
precedent was reaffirmed by the CEI in several recent cases. See Case T-374/00,
Verband der Ereien Rohrwerke eV v. Commission, 2003 (C 213) 55 Tl 49.
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« Id.
« Case T-2/93, Air Erance v. Commission, 1994 E.C.R. 11-0323 n 44^8.
^ The same weight was given to recognize standing of third parties in
appeals in Case T-374/00, Verband der Ereien Rohrwerke eV v. Commission,
2003 (C 213) 55 and in Case T-158/00, Arbeitsgemeinschaft der offentlich-
rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD) v.
Commission, 2003 (C 304) 39. In the latter, the Commission stated that active
participation alone is not sufficient to establish a "direct and individual"
concern, but it obviously helps:
Although, as rightly pointed out by the Commission, mere participation
in the procedure is indeed not by itself sufficient to establish that the
applicant is individually concemed by the decision, especially in the field
of concentrations, the thorough examination of which requires contact
with numerous undertakings, active participation in the administrative
procedure is a factor to be taken into consideration, inter alia, in the more
specific field of control of mergers, in establishing, in the light of other
specific circumstances, whether an action is admissible (BaByliss v
Commission, paragraph 95). This is all the more so in this case where, as
found above, that active participation had an effect on the course of the
procedure and, at least in part, on the content of the contested decision,
both as regards the tinding that the merger raised serious doubts and as
regards the commitments necessary, in the Commission's view, to dispel
those doubts.
Id. 1 76. See also the very recent decision of the CEI in Case T-177/04, easyjet
Airline v. Commission, http://eur-lex.europa.eu/LexUriServ/LexUriServ
.do?uri=CELEX:DKEY=429256:EN:NOT (Jul. 4, 2006).
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51 In Verband, 2003 (C 213) 55, as well as in other recent cases, the CEI
analyzed the two criteria separately, suggesting that in certain occasions a
decision may be of direct, but not individual concem to a third party, or vice-
versa. In tfiose cases, the standing of such third parties would not be
recognized. In easyjet Airline, Case T-177/04, for example, the CFI stated: "It
follows that the applicant is directly concerned by the contested decision."
And, just after that, the court concluded: "It is therefore necessary to
determine whether the applicant is also individually concerned by the
contested decision." Id. n 32-33.
52 See, e.g.. Air France, 1994 E.C.R. 11-00121 (challenge to BA's acquisition
of Dan Air) and Air France, 1994 E.C.R. 11-0323 (challenge to BA's acquisition
of TAT); and more recently BaByliss's appeal against the Commission's
clearance of SEB/Moulinex merger in Case T-114/02, BaByliss v. Commission,
2003 E.C.R. 11-1279. Most recently, see Case T-464/04, Impala v. Commission,
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit
=rechercher&numaff=T-464/04 (Jul. 13, 2006), in which the third party appeal
before the CEI against a clearance decision was successful.
53 See, e.g., BaByliss, 2003 E.C.R. 11-1279. This case concerned the
SEB/Moulinex merger, which the Commission had cleared subject to
commitments in respect of affected markets in Austria, Belgium, Denmark,
Germany, Greece, the Netherlands, Norway, Portugal, and Sweden. The CEI
annulled in part the clearance decision because it found that the Commission
had incorrectly concluded that there were no serious doubts as to the
compatibility with the common market of a number of affected markets in
electrical appliances in Einland, Ireland, Italy, Spain, and the UK and
accordingly had failed to require commitments in respect of these affected
markets. In easyjet Airline, a third party in the review process involving the
merger between Air Erance and KLM appealed a Commission decision that
cleared the merger subject to commitments that were offered by the merging
parties, arguing that such commitments were insufficient to solve competition
concerns raised by the merger. The CEI recognized easyjef s standing to sue the
Commission, but did not agree with its arguments, concluding that there was no
indication that the Commission had committed manifest errors in its assessment
of the impact of the merger with the commitments that were offered.
JUDICIAL REVIEW IN THE EU : 361
rights had not been respected. However, such a right did not extend
to requesting the review of the substantive elements contained in the
decision reached by the Commission, even if clearance of the merger
was made conditional upon divestiture of part of a business
amounting to a "transfer of an undertaking" to which the Transfer of
Undertakings (Protection of Employment) Directives^ may apply.
Shareholders of undertakings to a merger will not usually have
standing before the CFI as applicants in a request for annulment of a
merger decision. The CFI's ruling in Zunis Holding case,^^ succinctly
addresses the standing of minority shareholders:
[T]he mere fact that [a Commission decision declaring that a concentration
does not come within the scope of the ECMR] may affect the relations
between the different shareholders of [the target] company does not of
itself mean that any individual shareholder can be regarded as directly and
individually concerned by that [decision].... A finding . . . that a concen-
tration notified to it does not fall within [the ECMR] is not of such a nature
as by itself to affect the substance or extent of the rights of those sharehold-
ers, either as regards their proprietary rights or the ability to participate in
the company management conferred on them by such rights.... The deci-
sion finding that the concentration notified does not fall within the scope of
[the ECMR] affects the applicants, in their capacity as shareholders [of the
target company], in the same way as any other of the [140,000] or so share-
holders of that company. . . . It follows that the Commission decision . . .
cannot concern the applicants individually, in particular because their
respective shareholdings in the capital of [the target company] at the mate-
rial time each represented less than 0.5% of the share capital and because
they have failed to prove that by reason of that decision they were placed
in a different position to that of any other shareholder.5'
More recently, the CFI has addressed the position of third parties
w h o become involved in postmerger negotiations r e g a r d i n g the
The CFI ruled that the appeal was admissible, since the
Commission's rejection of TotalFinaElf's initial proposal was a
measure that could be challenged because it brought about a distinct
change in Petrolessence's legal position. In its ruling, the CFI noted
that the Commission's decision to clear TotalFina's acquisition of Elf
Aquitaine was specifically made conditional upon a number of
commitments including the divestment of the 70 petrol stations to one
or more purchasers who needed to be approved by the Commission.
The CFI concluded that Petrolessence had an interest in bringing the
appeal since, as a result of the Commission's rejection, Petrolessence
was excluded from the scope of the contractual negotiations with
TotalFinaElf's divestment of its 70 petrol stations. However,
Petrolessence then lost the appeal on its merits.
In a recent decision, the CFI recognized the standing to sue of
ARD against a merger decision involving a concentration between
Kirch Pay TV and BSkyB. ARD, a TV broadcaster, was not found to be
even a potential competitor of the merging parties. Even so, the
appeal was found to be admissible by the CFI:
to note that the CFI specifically rejected the applicant's claim that the
Commission lacked the power to issue a decision revoking its findings
that certain restrictions were ancillary to the notified merger, even
though its decision did not fall within any of the provisions of the
ECMR entitling it to revoke earlier decisions. In Gencor v. Commission,^
the applicant's argument that the Commission lacked competence to
review a foreign-to-foreign merger was also dismissed. Similarly, the
CFI also ruled in Kesko v. Commission^* that the Commission is
competent to analyze a merger that does not have an EC dimension
when requested to do so by a national competition authority under
Article 22 of the ECMR. In Schneider v. Commission,^ the CFI confirmed
the Commission's power to extend the four-month time limit for
conducting an in-depth phase II merger review in exceptional
circumstances, such as when awaiting a response to its Article 11(5)
decision to request further information. The ruling of the ECJ in the
Cimpor-Cimentos^ case confirmed the Commission's power to determine
the legality of any measures taken by Member States to protect national
legitimate interests under Article 21(4) of the ECMR.
™ Id. J 155.
'1 Case T-464/04, Impala v. Commission, http://curia.europa.eu/jurisp
/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=T-464/04 (Jul. 13,
2006).
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This is also the case with respect to the obligation to grant the
merger parties access to the file. Accordingly, where the Commission
fails to disclose certain documents, the CFI will conclude that the
parties' rights of defense have been infringed where "non-disclosure of
the documents in question might have influenced the course of the
procedure and the content of the decision to the [parties'] detriment."^
2006), shows the level of deference that is given (even by parties) to market
definitions by the Commission:
At the hearing the [CFI] asked the applicant to clarify its position with
regard to market definition so as to state whether or not it was seeking to
challenge the Commission's definition of the market. The applicant
replied in the negative, explaining that it did not intend to challenge the
merits of the O&D method, but wished to highlight the fact that, in its
view, the Commission ought to have assessed the effect on competition
on other markets, which should have been defined differently.
Id. 1 57.
82 See Airtours, 2002 E.C.R. 11-2585. The CFI confirmed the Commission's
relevant market definition, but reviewed thoroughly, and disagreed with, the
Commission's assessment of the facts for the finding of a collective
dominance in the postmerger scenario.
83 See Case T-210/01, General Electric v. Commission, 2006 O.J. (C 48)
26-27. The CFI stated:
[E]ffective judicial review is all the more necessary when the Commission
carries out a prospective analysis of developments which might occur on
a market as a result of a proposed concentration. As the Court stated in
its judgment in Commission v Tetra Laval, a prospective analysis of the
kind necessary in merger control must be carried out with great care
since it does not entail the examination of past events—for which many
items of evidence are often available to enable their causes to be
understood—or even of current events, but rather a prediction of events
which are more or less likely to occur in future if a decision prohibiting
the planned concentration or laying down the conditions for it is not
adopted (see, to that effect, Tetra Laval v Gommission). A prospective
JUDICIAL REVIEW IN THE EU : 373
judgments indicate that the CEI will review closely the quality of the
evidence presented by the Commission to justify its decision, to see
whether the facts objectively support the findings that purport to
make the decision reasonable.
4. EFFECTS OF CH'S JUDGMENT The CEI will not issue a judgment in
substitution of the decision issued by the Commission. Once the
Commission decision is found to be in violation of any of the grounds
for appeal, the CEI will annul the decision, arid it will be for the
Commission to issue another decision in order to comply with Article
233, which requires "[t]he institution . . . whose act has been declared
void . . . to take the necessary measures to comply with the
judgment." In addition, in the merger scenario, the annulment of the
Commission decision that blocked the merger is not necessarily good
news for the parties, since in order to close the transaction they will
still need an approval from the Commission, and the annulment of
the blocking decision does not ensure that approval will be granted.
(The decision may have been annulled on procedural grounds, and
the Commission could reach the same decision once the procedural
defects are corrected.^") Eurthermore, the commercial imperative
underlying the parties' desire for proceeding with the transaction
may have long ceased to exist by the time the CEI reaches its
judgment on the merits of the appeal.
In situations in which the Commission prohibits a merger and
later issues a decision under Article 8(4) of the ECMR to restore
conditions of effective competition, in the event the CEI annuls the
prohibition decision, the second divestiture decision will
consequently also be annulled because the latter's "validity is
contingent on that of the decision prohibiting the concentration and
that, accordingly, annulment of [thisl decision completely deprives
the divestiture decision of any legal basis."85 As a result, "the illegaUty
of the prohibition decision thus leads to the illegality of the
divestiture decision," which will be annulled.^* Nonetheless that does
not mean the merger can still go ahead; in such situations the
Commission will first have to issue a clearance decision, and
therefore it will need to restart its whole investigation into the
merger.
The CEI does not have to refer the case back to the Commission in
cases relating to decisions on fines. According to Article 16 of the
ECMR: "The Court of Justice shall have unlimited jurisdiction within
the meaning of Article 12291 of the Treaty to review decisions whereby
the Commission has fixed a fine or periodic penalty payments; it may
cancel, reduce or increase the fine or periodic penalty payments
imposed."87 As a result, the CEI may decide for itself what the
appropriate amount of a fine or penalty, if any, should be.
In cases in which a Commission decision is annulled, the merger
parties may, if they have suffered loss as a result of that decision, seek
to bring proceedings against the EU in order to obtain reparation.
proposed merger to have to wait. This new procedure is not free from
criticism: "The new 'fast-track' procedure is little better [than the
regular procedure]. . . . [T}his still involves a significant delay, is not
automatically granted and requires significant limitations on the areas
to be investigated by the Court."^'' The previous Competition
Commissioner Mario Monti, however, saw the introduction of the
expedited procedure as a significant step toward the establishment of
effective judicial review:
[T]he introduction by the CFI of a fast-track procedure has had consider-
able success, demonstrating that judicial review can be delivered with
relative speed. The efficiency with which it disposed of the appeals in
two recent merger cases represents real progress. I hope that it will be
possible for appeals in merger cases to be even further accelerated.''
The CFI also identifies another factor as the main reason for the
significant delays in judgments (not only competition related):
excessively long pleadings presented by the applicants. In its Practice
Directions, the CFI states that "[i]n the interests both of the parties
themselves and of the proper administration of justice, pleadings
must concentrate on essential matters and be as brief as possible.
Excessively lengthy pleadings complicate consideration of the case-
file and are a prime cause of delay in the disposal of cases."'* The
Practice Directions then go on to give indications as to what the CFI
considers the appropriate maximum length of pleadings.
« Alan Overd, After the Airtours Appeal, 23(8) E.C.L.R. 377 (2002).
'5 Mario Monti, Europe's merger monitor. THE ECONOMIST, NOV. 9, 2002, at
89-90. A similar view is shared by Temple Lang, who states, in his notes, that
the new procedure "is very important because it creates, for the first time, the
possibility of effective judicial review of Commission merger decisions. This
will make the overall [EC] merger procedures more acceptable to companies.
It will discourage Commission officials from being prejudiced or
unreasonable, and from relying unduly on submissions made by competitors,
or on novel or unsubstantiated theories, e.g., about future market
developments or joint dominance. It will tend to bring the results of [EC]
merger cases more into line with the results in U.S. cases, which are
influenced directly by the need to convince courts." Lang, supra note 27.
* Court of Justice—Court of First Instance Practice Direction, 2002 O.J.
(L 87) 48.
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IV. CONCLUSION
One of the main areas of concern that was identified in the
majority of responses to the Commission's Green Paper on reform of
the ECMR,ioi which preceded adoption of the new ECMR in 2004,
was the need to reinforce the procedural safeguards contained within
the merger review process. The Commission's summary of responses
recounts the concern expressed by respondents who felt that "the
availability of effective judicial review is illusory, on account of the
lengthy delays before appeals can be heard and judgements [sic]
rendered, as well as because of the existence of what is perceived by
some to be inadequate standard of review."'''^