The Hearing Officer in EU Competition Law Proceedings: Ensuring Full Respect for the Right to Be Heard?

Abstract

This article will discuss, in light of the expected accession of the European Union (EU) to the European Convention of Human Rights (ECHR), whether the current enforcement structure of competition law in the EU is consistent with the right to fair trial enshrined in Art 6 ECHR. After a brief introduction summarizing the terms of the debate on the ‘fair trial’ in EU competition law, the focus will shift to the role of the Hearing Officer and its evolution to illustrate the combination in its role of two different functions: on the one hand, ensuring respect of the right to be heard; on the other, improving the quality of the decision and minimizing the risk of annulment through judicial review. To emphasize the fundamental importance of giving priority to the former if EU competition law proceedings are to avoid potential condemnations for breach of Article 6 ECHR, a paragraph will describe the intensity of the judicial control operated by the EU adjudicature over violations of due process. Following a critical analysis of procedural guarantees available in competition proceedings and the associated powers and responsibilities of the Hearing Officer, the article will conclude with two suggestions for a potentially improved respect of the right to be heard under the current mandate, and a word of optimism for a revision of the mandate and an indication of what should be the main priority of such reform.

Keywords: right to be heard, antitrust, due process, hearing officer