The Competition Law Observatory (CLO)

P. Nihoul, T. Skoczny (Eds.), Procedural Fairness in Competition Proceedings (Edward Elgar 2015), Hardback xxvi + 362 pp. (ISBN: 978-1-78536-005-3), Price £90 (£81 on the publisher’s website).

For the protection of free competition to be effective, competition authorities must be equipped with proper tools to combat antitrust infringements. At the same time, procedural fairness must be guaranteed during proceedings that might lead to the finding of an infringement and the imposition of an, often, heavy, fine. The interaction between due process and the effective enforcement of competition rules is a very controversial hot topic, with strong and often diverging opinions of academics and lawyers, and antitrust officials. For many years academics and lawyers have criticised, for example, the Commission’s double role of prosecutor and judge in antitrust matters, highlighting the inevitable lack of impartiality in its actions and decisions.

Edited by Paul Nihoul and Tadeusz Skoczny, and published in the prestigious Academic Society for Competition Law (ASCOLA) series, the book under review is mainly based on the contributions presented and topics addressed at the 9th Annual Conference of ASCOLA, which was held between 26 June and 28 June 2014 in Warsaw. The purpose of the Conference was to discuss the most topical and important aspects of procedural fairness in competition law proceedings. The book contains thirteen contributions, divided into three parts, that cover a wide range of issues of interest on the topic. It also includes a summary of the key aspects addressed and discussed by the speakers during their interventions at the Conference. In a short review like this one, only the main subjects and some points on some essays can be briefly presented.

The first part of the book deals with general aspects of fairness in competition proceedings. For instance, Professor Caron Beaton-Wells argues that a correct balance between compensation, deterrence and punishment should be established. In this respect, fairness in antitrust proceedings plays a pivotal role because it motivates, more than heavy fines, competition law compliance. On the other side, Albert Sanchez Graells and Francisco Marcos argue against the application of human rights guarantees to corporate entities in competition law proceedings.

The focus of the second part of the book is on the right of defence and the right to be heard. These issues are discussed in relation, for example, to inspections and to the role of the EU Hearing Officer. In addressing the deficiencies afflicting the current system and role of the EU Hearing Officer, Professor Giacomo Di Federico suggests limiting the mandate to one renewable term only, to choose candidates from the Commission’s Legal Service and new rules on written evidence used during hearings. Also very interesting is an essay on the notion and application of the right of defence in the jurisprudence of the Court of Justice.

The final third part of the book is dedicated to the right to judicial review in competition proceedings. Professor Daniel Zimmer addresses the question of whether an administrative or judicial system of competition law enforcement is preferable. He concludes with a preference for the first option. Other essays focus on the fairness of the US public enforcement system, the standard of judicial review in some EU Member States, and the compatibility of the standard of judicial review in EU competition proceedings with Article 6 of the European Convention on Human Rights.

The book contains a varied and thought-provoking set of contributions very useful to the debate on the topic of striking the right balance between effectiveness of competition law enforcement and right to due process. The book is also of great interest to practitioners for the wealth of references to cases and legal arguments used before courts to challenge the fairness of competition law proceedings.

Reviewed July 2017
By Riccardo Sciaudone
Head of the Competition Law Observatory

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