Private parties are often reluctant to challenge EC institutions decisions. The main reasons for this are as follows:
- Restrictive principles re. locus standi;
- Restrictive definition of the acts that can be subject to annulment proceedings;
- Rise of a new "settlement culture" (i.e. through procedural settlements, commitments, leniency and so on).
That situation is open to criticism, if only because it renders the EU system of judicial protection ineffective.
In light of the CMB judgment, handed down yesterday, we believe that the ineffectiveness of judicial protection could be further aggravated by the Community courts themselves. In certain fields of competition policy such as e.g. Article 82 EC, the CFI and the ECJ have consistently refused to recast the Commission's analysis. The table below shows that the vast majority of annulment actions brought against Article 82 EC decisions have been dismissed by the Court. The standard of judicial review applied by the CFI on Article 82 EC exhibits a strong sense of deference with respect to Commission analysis and, in turn, discourages potential applicants from seeking relief before the Community courts.
The 1.000.000$ question now: who will be the first in a decade to win an Article 82 EC case before the CFI?
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