Thursday, March 4, 2010
Posted by D. Daniel Sokol
Christophe Lemaire and Simon Naudin (both Ashurst) ask A New Treaty, A New Commissioner, A New Competition Policy?
ABSTRACT: The impulse for change in competition law and policy should not be expected to come either from the entry into force of the Lisbon Treaty, or from the nomination of Mr. Almunia, whose statements indicate that he does not intend to deviate substantially from the path followed by his predecessor.
However, the question may be asked whether more substantial changes should be anticipated as a result of the ever-increasing tension between the high standards of fundamental rights and freedoms which the EU has recently developed, on the one side, and the potential incompatibility of the Commission's organization and procedure with essential due process requirements, on the other side. DG Comp is organized and functions like an ordinary administrative body, and yet it functions as an investigator, prosecutor, and judge, with the authority to impose fines amounting to billions of Euros or even structural remedies.
In parallel, the EU has set increasingly ambitious standards of fundamental rights, as displayed by the entry into force of the European Charter of Fundamental Rights. It is therefore not surprising that the reinforcement of due process guarantees came up as one of the main requests of companies and lawyers consulted in the context of the Commission's report on the implementation of regulation 1/2003. In the next few years, the growing pressure in favor of adequate due process guarantees in the context of antitrust proceedings could well impose considering a procedural reform which is not necessarily on Mr. Almunia's initial agenda