This article contends that the European Commission’s procedures for enforcing competition law are inadequate and do not match the importance and prestige of the institution as a world leader in antitrust enforcement. The topic is especially urgent due to the heavy consequences of being found to have infringed competition rules, the punitive and adjudicatory nature of the process, and the increasingly important case-law of the European Court of Human Rights. The article identifies three weaknesses in the current system: the adoption of a decision finding guilt by 27 political appointees who have not heard or studied the evidence; the lack of any hearing before a decision-maker; and the fact that the same case team in the Commission handles both the investigation of the case and the reaching of a decision. An institution as talented and prestigious as the Commission does not deserve such unique, and uniquely unsatisfactory, procedures. This article suggests some palliatives which would not necessarily involve Treaty change but which would endow Europe’s premier competition authorities with better processes. It is proposed that the determination of the facts be made by a qualified person or trio of persons who would hear both prosecution and defence on equal terms, would reach a conclusion on the factual and legal soundness of the accusations, and would then pass to the College of Commissioners a draft decision for endorsement or rejection. The author submits that the Commission ought to act before it is faced with a negative finding by a competent court about its current practices.

Due process in EC competition cases: A distinguished institution with flawed procedures

Leniency Programmes have been introduced as a complementary measure in the enforcement of competition law in detecting cartels, on the basis that hard to find evidence will be provided by undertakings coming forward to confess, in exchange for immunity or reduction in fines. The advantages of leniency are deemed to be twofold, since evidence is thereby expected to be given voluntarily, and in turn it would save up the limited resources available to enforcement authorities, by reducing lengthy investigations in search of evidence. Therefore, the widely accepted view by regulators, economists, and lawyers alike is that leniency is by far the most effective method of detecting and deterring anticompetitive activities by undertakings. An ‘undertaking’ covers any entity engaged in an economic activity that offers goods or services in a given market. In the UK, Chapter I of the Competition Act 1998 governs prohibitions that fall within the category of cartels of which price-fixing, market or customer sharing, agreements to restrict production or supply, and bid-rigging are the most serious ‘hard-core cartels’. This study evaluates the efficacy of the Leniency Programme in the enforcement of competition law applied in respect of cartel infringements based on cases decided by the UK’s principal enforcement authority. Chapter I cases decided and published over a twelve-year period, since the Competition Act 1998 came into force, have been analysed in order to evaluate whether the leniency programme has been an incentive for colluders to apply for leniency. The results indicate that very few leniency applications were submitted voluntarily before an investigation was begun by the enforcement authority. Moreover, the detection rate of Chapter I cases on average has been very low over the twelveyear period, less than 2 cases per year, excluding settlements. The research also shows that contrary to the accepted view that evidence relating to cartels is difficult to find, cartels studied in this thesis have left a trail of both electronic, and other evidence that the authorities were able to seize. Further, the leniency applicants were not always reliable witnesses, and despite leniency, the enforcement authorities had to conduct lengthy investigations, negating the cost saving assertion and taking resources away from ex officio interventions by the authorities. The conclusion drawn from this study is that rather than enhancing detection and deterrence of anticompetitive behaviour by undertakings, the leniency programme overlaps, and in effect, undermines the public enforcement of competition law in the UK.

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The role of the leniency programme in the enforcement of competition law in the UK: a complementary enforcement procedure or an admission of the failure of enforcement authorities to tackle anticompetitive behaviour head on?

Treaty of Lisbon – Fundamental Rights Charter – European Convention on Human Rights – Partial incorporation of Convention in Charter – Incorporation of Charter into EU law with Lisbon – Questions of loss of autonomy for the EU legal order – Gain in direct effect of Convention in EU member states

Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights after Lisbon

This research is set out to discuss how, in a competition law regime, the institutional dynamics between courts and the enforcement agencies could have an impact on the law enforcement outcomes (presented in Chapter 1). It adopts a comparative law perspective for this discussion, using the regimes of the EU and China as study samples. A theoretical framework, including the conception of “theory of harm”, is established (in Chapter 2) to underpin the comparative analyses. There are two aspects of comparison. The first one is the comparison between the institutional setting of the EU regime and that of the Chinese regime. There, a key difference is highlighted: pertaining to the court-agency relationship, the EU regime adopts a supervisory model, and the Chinese regime adopts a competitive one (Chapters 3 and 4). Based on that is the second aspect of comparison: the production of theories of harm in these two regimes. In that regard, this research selects and analyzes a number of enforcement cases by the courts and agencies of these two regimes in the arena of abuse of dominance; the analytical focus is on the theories of harm constructed by the relevant enforcers in these cases (Chapters 5 and 6). This research finds that a competitive model of institutional dynamics incurs more problems than a supervisory one. The implication is that the presence of judicial supervision, or the lack thereof, has a definitive impact on the quality of the theories of harm produced (Chapter 7).

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Theories of harm on abuse of dominance: a Sino-EU comparative analysis of the impact of institutional dynamics on the law enforcement

................................................................................................................................ 2 TABLE OF CONTENTS ................................................................................................................ 3 ACKNOWLEDGMENTS .............................................................................................................. 9 LIST OF ABBREVIATIONS ......................................................................................................... 10 CHAPTER 1: INTRODUCTION ................................................................................................... 12 Background and Context ..................................................................................................... 12 I. Problem and Aim of the Thesis ........................................................................................... 13 II. Key Concepts and their Application in this Thesis ............................................................. 16 III. Effectiveness and Fairness ............................................................................................. 17 A. The notion of effectiveness ..................................................................................... 17 1. Notions of fairness ................................................................................................... 18 2. Reconciling Effectiveness and Fairness in Competition Law Enforcement .................. 18 B. Theories of punishment .......................................................................................... 21 1. a. Deterrence ......................................................................................................... 21 b. Retribution ......................................................................................................... 25 c. A mixed theory of punishment ......................................................................... 27 i. Approximation of the theories .................................................................... 28 ii. Application in cartel enforcement ............................................................... 29 Summary .................................................................................................................. 30 2. Application of the Key Notions throughout the Thesis ................................................. 31 C. Effectiveness ............................................................................................................ 31 1. Fairness .................................................................................................................... 32 2. Effectiveness through fairness ................................................................................ 33 3. Methodology ....................................................................................................................... 35 IV. Contribution and Scope ....................................................................................................... 36 V. Structure .............................................................................................................................. 37 VI. CHAPTER 2: EFFECTIVENESS AND FAIRNESS IN EU CARTEL ENFORCEMENT ............................ 40 Introduction ......................................................................................................................... 40 I. Legitimacy in EU cartel enforcement .................................................................................. 41 II.

Reconciling effectiveness and fairness in the EU leniency policy

From the Introduction. This paper will thus show that, given the rapid "criminalisation" of competition law proceedings, sanctions should in principle be imposed at first instance
I. Sanctions imposed by the Commission in competition proceedings are "criminal charges" within the meaning of Article 6 ECHR by an independent and impartial tribunal fulfilling all the conditions of Article 6 ECHR (part I). Or at the very least, these sanctions should be subject to full jurisdictional review by an independent and impartial tribunal in order to comply with Article 6 ECHR and to cure the defects of the administrative procedure (part II). It is doubtful however whether such a full jurisdictional review, as it is understood by the ECtHR, is available at Community-level in antitrust cases.

Competition law proceedings before the European Commission and the right to a fair trial: no need for reform? Research Papers in Law, 5/2008

From the Introduction. This paper will thus show that, given the rapid \"criminalisation\" of competition law proceedings, sanctions should in principle be imposed at first instance \nI. Sanctions imposed by the Commission in competition proceedings are \"criminal charges\" within the meaning of Article 6 ECHR by an independent and impartial tribunal fulfilling all the conditions of Article 6 ECHR (part I). Or at the very least, these sanctions should be subject to full jurisdictional review by an independent and impartial tribunal in order to comply with Article 6 ECHR and to cure the defects of the administrative procedure (part II). It is doubtful however whether such a full jurisdictional review, as it is understood by the ECtHR, is available at Community-level in antitrust cases.

/pdf/competition-law-proceedings-before-the-european-commission-1lxn381741.pdf

Competition law proceedings before the European Commission and the right to a fair trial: no need for reform?

Meeting Competition: Why it is not an Abuse under Article 82

Introduction. Meeting competition occurs when an undertaking lowers its prices in response to the
entry of a competitor. Despite accepting that meeting competition can be compatible
with Article 82, the Commission2 and the Court of justice3 have repeatedly condemned the practice due to the modalities of implementation or “particular circumstances”.4 However, existing precedent on the subject remains obscurely
reasoned and contradictory, such that it is at the present time impossible to give clear advice to undertakings on the circumstances in which meeting competition is
compatible with Article 82.
Not only is such legal uncertainty in itself damaging but, in so far as it discourages meeting competition, it appears to us to be harmful to competition. As concerns the
latter point, it will be seen that some of the most powerful arguments against prohibiting meeting competition are based on the counterproductive nature of the remedies.
The present article does not, however, aim to propose a simple solution to distinguish abusive and non-abusive meeting competition.5 Nor does the article aim to give a comprehensive overview of the existing case law in this area.6 Instead, it takes a more economic approach and aims to lay out in a (brief but) systematic fashion the
competitive concerns that might potentially be raised by the practice of meeting competition and in doing so to try to identify the main flaws in the Court and
Commission’s approach.

Meeting Competition: Why it is not an Abuse under Article 82. Research Papers in Law, 3/2004.

(2005). Current Developments in Member States. European Competition Journal: Vol. 1, No. 1, pp. 185-243.

Donald Slater

Papers

Competition law proceedings before the European Commission and the right to a fair trial: no need for reform? Research Papers in Law, 5/2008

Competition law proceedings before the European Commission and the right to a fair trial: no need for reform?

Meeting Competition: Why it is not an Abuse under Article 82

Meeting Competition: Why it is not an Abuse under Article 82. Research Papers in Law, 3/2004.

Current Developments in Member States