The Lawfulness and Acceptability of Enforcement of ... - Stibbe

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J. — Critical 42 44 APPLICATION OF CONCEPTS 4 SUGGESTIONS FOR AVOIDING FORMALISM IN THE 594 WORLD COMPETITION Ever since the system came into effect at the start of the 1960s, there has been 4.1 THE PROCEEDINGS BEFORE THE COMMISSION namely the Commission, the General Court and the Court ofJustice. issues concerning the role of the three actors in the European enforcement system, powers. These complaints have increased during the past few years. The criticism of the incompatibility the Commission’s prosecutorial and sanctioning incriminating evidence. The entire proceedings are said to favour prosecution Commission is accused of selectively gathering (or at least focusing on) rather than objective legal findings. Both the high-profile report of Professors Schwarze and Bechtold criticism are directly related to the level of the fines that the Commission iniposes. comprehensive report of the working group chaired by Professor Waelbroeck commence with graphs and tables illustrating the increase in the level of fines. system. The level of the fines also explains why competition law sanctions fall and that they lead to increased attention for the lawfulness of the enforcement We understand that these high fines are typically agonizing for European business within the scope ofArticle 6 ECHR. system is not directly affected by the increased level of the fine; the system has not forgotten that high fines may be justified to guarantee the proper functioning of suddenly become unlawful only because the fines that are imposed increase. Moreover, when assessing the European enforcement system, it should not be pious legal principles. As is the case with every repression—orientated enforcement the European internal market. It would not benefit the internal market if the system, a balance must be found somewhere between efficiency and lawfulness. efficiency of European competition policy were to be sacrificed on the altar of And, as in all discussions on finding the correct balance, those on each side of the litigating table will obviously adopt divergent positions. acceptability of its procedures. The decision to enhance the role of the Hearing See the considerations of the EFTA Court in Posren Nrge, cited n. 4 above, at para. 88 11. See the literature in footnote 10 of the Editorial Comments in Comm. Mkt. L. Rev. 48-5, Current Practice and Proposals for Change, http://ec.europa.eu/competition/consultations/2008 M. Merola & D. ‘ aelbroeck (eds.), Towards an Optimal Enforcement of Competition Rules in Europe: regulation_1...2003/gleiss....lutz.en.pdf (Sep. 2008) 1405—1416 (2011), cited n. 1 above. Time for a Review of Reti1ation 1/2003? (Bruylant 2010). The Commission is furthermore making specific efforts to improve the Schwarze et al.. Deficiencies in European Community Competition Law 42 The more recent manifestations of this 4 Even so, the lawfulness of the enforcement 43 and the Analysis of the
phase, which precedes the notification of the statement of objections. The Hearing Officer is an example of this intention. 46 His role now extends to the investigative [19911 ECR 1-5469. para. 14. Judgment of the Court of Justice of Nov. 21, 1991, Case C—269/90, Teclmische Uiiieersität Miinchen the hearing officer in certain competition proceedings [20111 OJ C275/29. Decision of the President of the European Commission on the function and terms of reference of proceedings fairly, impartially and objectively and that it must ensure respect of the that the Commission must aim to objectively establish the truth and that it must, that the importance of the Commission’s prosecutorial duties will outweigh its individual case. 47 requiring the assessment of factually complex situations. This duty implies that the to that end, look for both incriminating and exculpatory evidence. The Decision recital, the Decision aims to contribute ‘to the objectivity, transparency and efficiency of can be inferred from the principles of proper administration. We are thinking here, in particular, of the duty of care the Commission must observe, especially in cases an investigating judge is obliged to do in the Belgian or French criminal law system. In our opinion, an obligation for fulfiling this two-sided investigating task No 1/2003. It is and remains the task of the Commission to detect and fine The focus on efficiency of the administrative procedure runs the inherent risk those proceedings’. However welcome these improvements may be, they cannot alter the infringements. The Decision on the terms of reference of the Hearing Officer the specific criteria that the Commission is considering to take into account when fixing the fine. (reflecting the current process itself) is still geared towards the efficiency of the fight against infringements. In fact, according to the last sentence of the third and exculpatory evidence in the cases that are brought before it in the same way as it is regrettable that the recent reforms of the administrative proceedings have not litigants is that they can already gain insight, during the administrative phase, into stipulates, for instance, that the Coniniission has to conduct its competition duties flowing from the task to establish the (full) truth objectively. In that respect, addressed the Conmiission’s obligation to collect and examine both inculpatory entrusted with the practical application of the procedure for legal professional Commission must carefully and impartially examine all the relevant aspects of the questions that are posed, the period for answering those questions and he is privilege, as was outlined in the Akzo case. A further marked improvement for Officer may, for instance, intervene in disputes concerning the nature of the inquisitorial nature of the proceedings instituted under Council Regulation (EC) procedural rights of the parties concerned. However, the Decision does not state ENFORCEMENT OF EUROPEAN CARTEL LAW 595
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