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Procedural Fairness in Competition Proceedings

Procedural Fairness in Competition Proceedings

ASCOLA Competition Law series

Edited by Paul Nihoul and Tadeusz Skoczny

How substantive competition rules are enforced plays a crucial role in achieving their goals. This thoughtful book examines procedural issues that have arisen from the increased enforcement of competition law worldwide.

Chapter 5: Competition enforcement: a look at inspections

Maria De Benedetto

Subjects: law - academic, competition and antitrust law


Administration needs information. As is well known, administrative powers presuppose an activity of collecting information, in order to adopt well-reasoned administrative decisions, capable of attaining administrative objectives and of responding adequately to the public interest. At the same time, administrative knowledge is a cost which should be paid in order to legitimate administrative decisions.Competition law allows no exception to these general assumptions and Competition Authorities have long been considered institutions devoted to the ‘search for factual truth’. On the other hand, administrative activity to reduce this information gap could take on different forms. The first and most basic form consists in the simple collection of information, for example, about a single firm. The second consists in the possibility of making inquiries and the third to make vérifications, that is, a general power to investigate the environment of one person or of one firm, even through the use of inspections: it is clear that ‘knowledge of the facts cannot be obtained except by means of investigations’. However, the most prominent aspect of the third form (if we adopt an administrative law point of view) is that administrative knowledge can also be achieved mainly by coercive means. In other words, there are a number of administrative provisions which provide – in several sectors – tools to reduce the information gap between institutions and their stakeholders (enterprises, private individuals, other public bodies). In some cases, they allow institutions to make obligatory the giving of information and to sanction non-cooperative behaviour.

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