The Commission continues to enjoy a margin of discretion that is beyond full judicial review only where it enjoys real policy discretion. This is true in particular as far as the design of its enforcement policy is concerned: The Commission may set its own enforcement priorities; within the framework set out in Reg. 1/03, it may decide on the overall level of fines needed to ensure effective deterrence; and it is free to choose between the instruments of competition law enforcement, e.g. between prohibition decisions under Art. 7 of Reg. 1/2003 and commitment decisions under Art. 9 of Reg. 1/2003. In addition, some margin of discretion may well exist in the choice between remedies to the extent that they are equally suitable and proportionate with a view to the infringement found.
Upon a substantiated objection by the applicant, the GC will examine whether the facts on which the Commission has based its decisions are correct and complete, and whether they prove the legal claim they are supposed to support to the requisite standard. In doing so, the GC is legally empowered to engage in fact-finding of its own. According to Art. 32 of the Protocol on the “Statute of the Court of Justice of the European Union” the courts of the Union can hear evidence. They can ask the parties to the proceedings to present all documents or information deemed desirable (Art. 24 para. 1) and they can ask for information from the Member States, even if they are not parties (Art. 24 para. 2). The Union courts may also hear testimony or ask for expert testimony at their own initiative, without being bound to party requests (see Art. 32 of the Statute of the Court of Justice and Art. 65 of the GC Rules of Procedure).