Regulation 1/2003 (and Beyond): Balancing Effective Enforcement and Due Process in Cross-Border Antitrust Investigations

Abstract

The exchange and the use of information within the European Competition Network is a key feature of the cooperative enforcement system established by Regulation 1/2003. So is the autonomy of Member States in designing their own national procedural framework for the application of Articles 101 and 102 TFEU. Yet, those two features necessarily affect each other: the diversity of procedural rules and standards in place at national level impinges on the circulation of evidentiary materials, while securing the benefits of the cooperative system induces procedural convergence and thus aligns the exercise of Member States’ autonomy. Such a diversity/effectiveness conundrum raises inevitable coordination issues which affect the position of parties in antitrust proceedings. This paper aims to identify those issues and to provide a consistent framework for the management of effectiveness and due process concerns in an enforcement context bound to remain diverse.

Keywords: EC competition law, antitrust enforcement, due process, European Union, choice of law, leniency