Now also available aseBookNumerous parties – from the Organisation for Economic Co-operation andDevelopment (OECD) on down – have criticized the European Commission both forits ex parte decisions and for its dual role as prosecutor and judge incompetition enforcement. These fundamental problems of the administrativeprocess are not cured by judicial review on appeal.
Except for the finesimposed by the Commission, the appellate review is limited to the legality ofthe Commission decision, excluding a review on the merits of the case.Furthermore, in matters involving an assessment of complex economic ortechnical facts, the European courts feel constrained not to interfere withthe Commission’s appraisal. This double limitation means that Commissiondecisions are not subject to the kind of judicial scrutiny guaranteed by theEuropean Convention on Human Rights. In view of the projected accession of theEuropean Union (EU) to the European Convention as a result of the coming intoforce of the Lisbon Treaty, these problems of due process are susceptible tosubstantial reform. Ivo Van Bael contends that time has come for a radicaloverhaul in order to bring the institutional structure of the competitionenforcement system of the EU in line with the current interpretation of theConvention’s right to a fair trial.The purpose of this book is to describe the rules of due process as they arebeing applied today and as they have evolved over the years. The book offersan intensive analysis of the more important issues of due process that arisein the quasi-criminal context of infringement proceedings and in the somewhatless adversarial context of merger clearance proceedings. Topics covered inthe book include:• international and bilateral cooperation agreements; • Commission’s powers ofinvestigation; • attorney-client privilege and privilege againstself-incrimination; • access to the Commission’s file and relevance of theTransparency Regulation; • possible intervention by the European Ombudsman; •right to be heard and role of the Hearing Officer; • fines, leniency, andsettlement procedure; • parent/subsidiary and successor liability; • doublejeopardy; • enforcement of EU competition rules by national competitionauthorities, by national courts and by arbitration; • private enforcement anddamages; • notification of concentrations to Commission; • review process ofconcentrations and acceptance of remedies; • judicial review of infringementdecisions and of merger clearance decisions.Everyone concerned with the enforcement of competition rules – whether fromlegal, business, policy, or academic perspectives – will value this bookhighly. It offers a practical insight into the intricacies of due process andrelated issues. It reflects Ivo Van Bael’s extensive experience as a battletrained veteran litigator and emeritus professor of the College of Europe(Bruges) where he has been teaching EU laws of procedure for more thantwenty-five years.
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