This is Not the Time to be Tinkering with Regulation 1/2003 – It is Time for Fundamental Reform – Europe Should Have Change We Can Believe In

Competition Law Review, Vol. 6, No. 2, pp. 259-285, 2010

27 Pages Posted: 29 Oct 2010  

James Killick

White & Case LLP

Pascal Berghe

White & Case LLP

Date Written: July 1, 2010

Abstract

This article assesses whether the current enforcement system of EU competition law complies with the requirements of Article 47 of the Charter of Fundamental Rights (CFR) and Article 6 European Convention of Human Rights (ECHR). It concludes that this is not the case and puts forward possible ways to remedy this deficiency. It argues that EU competition procedures fail to meet the core due process standards laid down by the ECHR and the CFR because fines are not imposed by an independent tribunal at first instance. In addition, the limited exception to that key principle does not apply as competition law infringement cannot be deemed ‘minor offences’ and the General Court’s review of the Commission decisions remains too limited. Therefore, it is suggested that EU Courts should ideally be granted the power to adopt final infringement decisions at first instance, so as to ensure full compliance with Article 6 ECHR. However, in light of the constitutional and practical difficulties raised by such a change, this article examines three alternatives: (i) creating a new independent competition authority; (ii) broadening the review powers of the EU Courts; and (iii) having an independent adjudicator adopt public findings on the case after a hearing at which the case team acts as prosecutor, after which the Commission would have to decide whether to adopt these findings or to take a different decision. While none of these alternatives would on its own fully comply with the requirements of Article 6 ECHR, it is submitted that the combination of broader judicial review plus having an independent adjudicator adopt public findings on the case could be put in place relatively quickly, would solve a number of the shortcomings of the current system and seems to be the best alternative in the short/medium term pending full reform.

Keywords: Competition Law, Enforcement, Due Process, Human Rights

JEL Classification: K21, K42, L40

Suggested Citation

Killick, James and Berghe, Pascal, This is Not the Time to be Tinkering with Regulation 1/2003 – It is Time for Fundamental Reform – Europe Should Have Change We Can Believe In (July 1, 2010). Competition Law Review, Vol. 6, No. 2, pp. 259-285, 2010. Available at SSRN: https://ssrn.com/abstract=1699218

James Killick (Contact Author)

White & Case LLP ( email )

United States

Pascal Berghe

White & Case LLP ( email )

United States

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