Judicial Protection after Modernisation of Competition Law

The entry into force of Regulation 1/2003 has far-reaching implications for the enforcement of the EC competition rules. However, it does not deal with access to justice or the judicial protection of companies involved in competition cases. This article argues that the current legal framework in EC competition law lacks attention for some important issues of judicial protection. Certain characteristics of the modernised and decentralised system of competition law enforcement in the post 1 May 2004 era add to pre-existing problems in that respect. Generally speaking the lack of judicial protection under the pre-modernisation system was mainly a result of the strict rules on the admissibility of direct actions under Article 230 EC Treaty, which left some decisions or acts of the Commission outside the scope of judicial review. In that respect, the most important reasons for concern in the new system are the number of ( formal) individual decisions taken by the Commission, the further increase of soft law instruments and the creation of a number of new types of decisions by the Commission and within the network of competition authorities. This article focuses particularly on access to courts as one of the most fundamental elements of the right to effective judicial protection. The subject seems all the more relevant in light of recent developments in other areas of Community law highlighting the growing importance of the principle of adequate judicial protection in the Community legal order. The author calls upon the Community courts to continue to play an important role in the new modernised system of EC competition law.