Wednesday, March 24, 2010
Posted by D. Daniel Sokol
Michael Albers & Karen Williams (European Commission) ask Oral Hearings—Neither a Trial nor a State of Play Meeting?
ABSTRACT: Oral hearings have always been one of the more prominent features of the European Commission's procedure in competition cases, although these proceedings are predominantly written rather than oral in nature. This prominence is somewhat surprising given that hearings are merely an option for defendants, organized only at the request of the company which the Commission alleges to be in potential violation of EU competition law.
In practice, oral hearings are requested in around 75 percent of all cases for which a statement of objections ("SO") has been issued. Broken down by category, oral hearings are held in 90 percent of all cartel cases, 80 percent of all other antitrust cases (Art.101 and 102 TFEU violations), and only 50 percent of all merger cases. In the years 2004-2009, there have been, on average, 12 hearings per year, of which 50 percent have been cartel hearings, 30 percent other antitrust hearings, and 20 percent merger hearings. Recently, the trend for oral hearings to take place in only one out of two merger cases has not continued; hearings have been held in all proceedings with a statement of objections in the last two years, while there were none in 2007.
From the perspective of a defendant the attractiveness of an oral hearing hinges upon a variety of aspects. Considerations such as the nature of the objections, whether it is likely to be a multi-party meeting (including complainants or other hostile third parties), and the evidentiary situation are probably some of the more important aspects influencing the decision whether or not to request a hearing. Time may also play a role in merger cases.
Another important aspect is how the hearing is conducted. Oral hearings have been a constant feature of the Commission's competition proceedings since the first procedural regulation for the application of the competition rules was adopted in 1963. Much has changed since then, not the least because of the introduction of a Hearing Officer in 1982. Today oral hearings are meetings, very often of several parties, under the chairmanship of an independent Hearing Officer, where the merits of preliminary findings of the Directorate-General for Competition (DG Competition) adopted by the Commission, are discussed in a formal setting. A hearing is neither a trial nor a state of play meeting. A hearing is a hearing. It functions as a check and balance within the administrative procedure before the authority takes a final decision on a case.