Monday, December 13, 2010
Posted by D. Daniel Sokol
Damien Gerard (University of Louvain) predicts EU Antitrust Enforcement in 2025: “Why Wait? Full Appellate Jurisdiction, Now”.
ABSTRACT: In a series of speeches delivered over the past few weeks, EU Competition Commissioner Almunia and DG COMP Director General Italianer engaged various audiences on the sensitive topic of due process and competition enforcement. The objective was presumably to weigh in the current intense debate over the compatibility of the EU antitrust enforcement system with the requirements of Art. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR") on the right to a fair trial, in the context of the impending accession of the Union to the ECHR, as provided for by the Treaty of Lisbon, and of a growing consensus over the (quasi-)criminal nature of EU antitrust proceedings. The message was clear: "major structural changes to [the] competition enforcement and institutional structures are not an option" even though the Commission is "open to local changes that would improve [the] system." So much for those advocating a radical departure, "within five years," from the current organization centralizing investigator, prosecutorial, decisional, and policy-making functions in the hands of the Commission.
Among the reasons justifying their overall satisfaction with the current enforcement system, the chief EU antitrust enforcers referred systematically to the review of the Commission decisions by the European courts, which "represent[...] the ultimate guarantor for due process" and is "very close and very careful." "I certainly believe that it should be so," Commissioner Almunia once added. Various prominent representatives of the EU antitrust bar have voiced somewhat different views in recent months. Besides concerns pertaining to the duration of court proceedings or specific inconsistencies, they pointed in particular to what they perceive as a creeping expansion of self-imposed limitations on the degree of scrutiny exercised by the EU Courts over Commission decisions, as a result of the spread of the so-called "manifest error of assessment" standard. Underlying those concerns lies a growing sense of frustration at what is perceived as a disturbing discrepancy between, on the one hand, the transformation of the EU antitrust enforcement paradigm over the past decade and the corollary expansion of the Commission discretion and, on the other hand, the shrinking of the intensity of judicial review and the contraction of the EU Courts' unlimited jurisdiction with respect to fines.
This short note considers the substance of those claims in section 1, which discusses the emergence of a gap between the modernization of antitrust enforcement over the past decade and the hybrid character of the EU Courts' jurisdiction. To bridge that gap, section 2 advocates a re-balancing of the EU antitrust enforcement system by endowing the EU Courts with full appellate jurisdiction "to review decisions whereby the Commission has fixed a fine or periodic penalty payment." It then finds that Art. 31 of Regulation 1/2003 constitutes an appropriate legal basis to implement that solution. Hence it wonders: why wait for 2025?