Wednesday, May 5, 2010
Due Process Before the Commission of the European Union? Some Reflections Upon Reading the Commission Draft Paper on Best Practices in Antitrust Proceedings
Posted by D. Daniel Sokol
Bo Vesterdorf (Herbert Smith and Plesner) explores Due Process Before the Commission of the European Union? Some Reflections Upon Reading the Commission Draft Paper on Best Practices in Antitrust Proceedings.
ABSTRACT: In this comment, I shall, however, not discuss the above mentioned issues in any more detail but shall deal with another issue which is an important part, indeed the most crucial part, of what due process is all about; the issue of "impartiality and fairness" of the administrative proceedings which, as noted above, is a central principle of Article 41 of the Charter of Fundamental Rights. This is an issue which is not at all mentioned in the draft paper, yet is what the Best Practices paper should be and probably is aimed at ensuring.
I do want to address this issue for a reason specific to my own experience; which is that, in a large number of cases before the EU courts in Luxembourg (indeed from the very first cases with which I had the pleasure to deal as a judge at the then CFI), applicants have put forward a plea in law and arguments in support thereof claiming that the proceedings before the Commission were vitiated by a lack of objectivity from the officials who had investigated, examined, and in reality decided the case. The officials were claimed to have acquired a so-called "tunnel vision" as a result of which they were claimed to have refused to consider or even look at evidence or factual circumstances in favor of the undertakings concerned. This kind of argument has also frequently been made at conferences on competition law by lawyers who have participated in competition proceedings before the Commission. The essence of that kind of argument is that the public authority is claimed not to have been impartial or fair in its examination of a case. Were that to be true, it would mean a violation of the principles of good administration and not meet the requirements of due process.