ASCOLA Competition Law series
Edited by Paul Nihoul and Tadeusz Skoczny
Chapter 2: Effectiveness through fairness? ‘Due process’ as an institutional precondition for effective decentralized EU competition law enforcement
Attention to ‘due process’ has come to play an increasingly central role in the day-to-day practice of decentralized EU competition law enforcement. Once a mere corrective mechanism to counter the unmitigated application of competition law provisions and sanctions to investigated undertakings, due process now additionally determines and fundamentally streamlines the institutional design of EU competition law enforcement at both supranational and national enforcement levels. Section 2 of this chapter conceptualizes the transformation of due process requirements from corrective to increasingly constitutive elements underlying the institutional design and operational functioning of supranational and national competition authorities. The importance of EU-inspired due process design has increased significantly in the wake of procedural modernization and ‘decentralization’ of Articles 101 and 102 TFEU enforcement by Regulation 1/2003. Section 3 identifies the constitutive role of due process as giving shape to an ‘effectiveness through fairness’ narrative underlying EU-inspired NCA institutional design. Relying on the principle of institutional autonomy, the Court of Justice of the European Union would in that model be responsible for the shaping and structuring of an ‘effectiveness through fairness’ enforcement environment in accordance with which the institutional formats and structures national competition authorities would have to be (re)designed as a matter of European Union law. Section 4 criticizes the nascent and judicially structured due process-inspired effectiveness through fairness narrative as the prevailing way forward in streamlining EU and national competition law enforcement structures.
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