Outlook: Discussion of Reform Proposals
01 Jan 2020-pp 517-559
TL;DR: In this article, the authors defend the Commission's use of commitment decisions, arguing that the recourse to the Article 9 instead of the Article 7 procedure entails only a modest relaxation of the link between harm and remedy and of the procedural safeguards; it entails also a modest negative impact on legal certainty.
Abstract: So far, the present study has argued that most of the criticism that is levelled at the Commission’s use of commitment decisions is not justified. In the view defended here, the recourse to the Article 9 instead of the Article 7 procedure entails only a modest relaxation of the link between harm and remedy and of the procedural safeguards; it entails also only a modest negative impact on legal certainty. It is submitted that these modest shortcomings are, from an abstract point of view, acceptable in view of the consensual nature of commitments and of their underlying goal of procedural economy. This conclusion applies without prejudice to the necessity to balance the respective costs and benefits of Article 7 and Article 9 in each individual case according to the circumstances of the case at hand.
Citations
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01 Jan 2016
TL;DR: The 2011 proposal of the European Court of Justice aiming to increase the number of judges of the General Court has mutated after four years into a complete change of the EU judicial system.
Abstract: The 2011 proposal of the European Court of Justice aiming to increase the number of judges of the General Court has mutated after four years into a complete change of the EU judicial system. This long legislative debate was the first implementation of the Lisbon Treaty in the judicial domain. It has revealed different problems – formal and substantial – of the approach of public service reform in the European institutions.
References
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01 Nov 2008
TL;DR: In this paper, it is shown that 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 6ECHR (part I).
Abstract: 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.
40 citations
Posted Content•
TL;DR: In this article, the authors discuss two general questions concerning the use of settlements in public antitrust enforcement, namely under which conditions the uses of settlements contributes to optimal antitrust enforcement and conditions self-incrimination and waivers of procedural rights by settlement candidates are compatible with fundamental rights of defence.
Abstract: This paper discusses two general questions concerning the use of settlements in public antitrust enforcement, namely under which conditions the use of settlements contributes to optimal antitrust enforcement, and under which conditions self-incrimination and waivers of procedural rights by settlement candidates are compatible with fundamental rights of defence. The discussion of these general questions will be illustrated with the specific example of the two settlement procedures for the enforcement by the European Commission of the antitrust prohibitions contained in Articles 81 and 82 EC, namely the commitment procedure under Article 9 of Regulation 1/2003, and the new settlement procedure in cartel cases.
38 citations
Book•
30 Nov 2008
TL;DR: The right to be heard in EC Competition Proceedings between "administrative due process" and a right to a "fair trial" is discussed in this article. But the right of access to the evidence in competition proceedings as a "Right of the defence" between professional secrecy and "Equality of arms" is not discussed.
Abstract: Contents: 1. Introduction 2. The Right to be Heard in EC Competition Proceedings between 'Administrative Due Process' and a Right to a 'Fair Trial' 3. Access to the Evidence in Competition Proceedings as a 'Right of the Defence' between Professional Secrecy and 'Equality of Arms' 4. Protection Against Forced Disclosure of 'Sensitive Evidence': The Legal Professional Privilege and the Privilege Against Self-incrimination in EC Competition Investigations and Procedure 5. Judicial Review of Competition Decisions: A Guarantee of Fairness in EC Competition Enforcement? 6. The Modernisation of the Enforcement of Articles 81 and 82 EC Treaty and the Right to a 'Fair Procedure' 7. Conclusions: 'Article 6-proofing' EC Competition Proceedings? Conclusions Bibliography
32 citations
Posted Content•
TL;DR: In this article, the authors discuss the effect of Commitment decisions on private enforcement and enforcement by National Competition Authorities (NCAs), and discuss the experience with, and the pros and cons of the Commitment Procedure.
Abstract: The article critically discusses the "Commitment Procedure" under Article 9 Regulation (EC) 1/2003, a procedure that can be compared to settlements in US antitrust law, or administrative contracts in various EU Member States. The European Commission, after a preliminary assessment of the facts, may make commitments offered by the parties binding on them. Far from being the exceptional procedure it was originally intended to be, the procedure has become the standard route for all but hardcore cartel cases, most recently and prominently in the Google case. As the recent fining decision in the Microsoft case has shown, the Commission is serious about enforcing the commitments made binding on the parties.The article discusses the experience with, and the pros and cons of the Commitment Procedure, and the limited judicial review that is available against Commitment decisions that make disproportionate or, conversely, ineffective commitments binding on the undertaking. The article also discusses the effects of Commitment decisions on private enforcement, and enforcement by National Competition Authorities (NCAs).
26 citations
Book•
13 Mar 2014
TL;DR: In this article, the authors present and evaluate the results of an AHRC funded research project designed to generate a quantitative analysis of the extent to which private enforcement of competition law has taken place across twenty-seven EU Member States over a period of 13 years to 1 May 2012.
Abstract: This book presents and evaluates the results of an AHRC funded research project designed to generate a quantitative analysis of the extent to which private enforcement of competition law has taken place across twenty-seven EU Member States over a period of 13 years to 1 May 2012 in order to consider the extent to which the rights provided by competition law in the EU are protected and accorded effectiveness. It fills a major gap in our knowledge of the use of private litigation in Europe, especially in relation to consumer redress in competition-related cases, providing valuable empirical evidence to inform policy debate and developments. Based on extensive work by expert rapporteurs from 27 EU Member States, the study comprehensively identifies, for the period 1999–2012, all competition law cases before the domestic courts of the EU where parties were seeking to exercise rights conferred on them either by EU law (Articles 101 and 102 TFEU) or the domestic competition law equivalents. The general hypothesis that underlies the project is that private enforcement practice may at least partly be explained by the existence or availability of particular institutions, mechanisms and cultural factors in relation to the particular legal system, and, accordingly, the book provides an overview of certain aspects of the legal and institutional background to private enforcement across the Member states.
24 citations