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

- on
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those that prepare the decision.
48 This division would change the dynamic of the
current Treaty framework —
that
As regards the concrete details of this obligation, we believe —
within
the
596 WORLD COMPETITION
the other hand, in the presence of the department that must still prepare a
decision. In order to guarantee the impartiality of the ‘decision department’
Commissioners, one could consider separating it physically from the ‘prosecuting
department’
that bring the charges, on the one hand, and the undertakings that are charged, on
oral hearings, in the sense that a real debate could arise between the department
In relation to the review by the General Court and the Court of Justice, we
believe that it is clear, after the Court ofJustice’s judgments in Chalkor and KME,
entrusted with the preparation of the draft decision for the College of
practice so that the fines are actually in line with the actual damage caused by the
the sanction imposed by the Commission. As is evident from the Chalkor case, if
the applicant fails to do so, the General Court cannot be blamed.
prevention of those infringements.
introduce a clear division between the departments that bring the charges and
differently. Following the example of the Dutch competition authority, it could
cartel infringements as well as the need to guarantee a proper repression and
4.2 THE REVIEW BY THE GENERAL COURT AND COURT OF JUSTICE
the Commission to measure the effects of an infringement does not release the
General Court from the obligation to investigate such effects, if a party expressly
applicants have an important role to play.ao They must adduce the evidence that
elements summarized in the fining guidelines. However, it is also clear that
that the General Court can no longer afford to limit its review to checking the
must enable the General Court to assess the proportionality and appropriateness of
from a perspective of repression and prevention of the infringement, as effectively
offer new perspectives to take account of the economic substantiation of the fine
committed by each undertaking. The fact that the current guidelines do not oblige
adduces convincing evidence for this purpose. Applying jurisdiction in the manner
as we understand the Chalkor and KME judgments would enable fines to be more
Again, see Posten Norge, cited n. 4 above, paras. 267 and 268.
We have already argued above that the Commission should review its fining
Section 54a of the l)utch Competition Act. A similar system existed in DG Competition (DG IV)
DG Competition already has a precedent here. In the early years, the Merger Task Force was housed
in the seventies and early eighties.
a separate floor of the building and access could only be obtained with a special pass.
Accordingly, the Court of Justice’s judgments in the Chalkor and KME cases
the Commission could organize its services