Chapter 11: Judicial review of market definition
This chapter provides an overview of the theoretical framework for, and practical reality of, judicial review of market definition. It is argued that, while the general principles of judicial review are well established in the case-law, and duly differentiate between issues of law, issues of fact and complex economic assessments, the Court tends to disregard these principles and, as a rule, treats all market definition as economically complex, whereas a large number of the issues which are raised before the Court actually deal with the interpretation of the law and with facts, over which the Court must exercise full judicial review. It also describes the crucial importance that the issue of ‘moot arguments’ has had in the case-law on market definition, as well as the unfortunate limitation of judicial review, on occasion, to merely assessing compliance with the Market Definition Notice. Finally, the theoretical framework is contrasted with the practice of the Court. It is noted that the Court has only disagreed with market delineations carried out by the Commission on 5.7 per cent of the occasions when it was asked to review them and that the ECJ has practically abandoned the arena of market definition to the EGC, limiting the possibility of evolution of the theoretical framework for market definition.
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