The importance of judicial review for the future of EU merger control

This chapter looks at the role of judicial review in merger control, comparing the regimes in key jurisdictions such as the EU, the UK and the US, before considering the effectiveness of the EU regime and possible areas for improvement. Although the European courts review the legality of the Commission's merger decision and do not re-examine the case on the merits, a closer standard of review by the courts has developed over the years, holding the Commission to a high standard of proof. A review of the EU case law over the last ten years leads us to conclude that, from a substantive perspective, judicial review has been effective, but that lengthy delays before the courts continue to be a critical feature undermining the effectiveness of the regime. We conclude with a number of possible solutions to address the issue of timing, reiterating the importance of an effective judicial review regime, in particular in light of the Commission's increasingly aggressive enforcement approach in merger control.