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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 9: Fairness in state aid procedure: a contribution to the debate on the right to participate

Luboš Tichý and Petra Joanna Pipková

Subjects: law - academic, competition and antitrust law


It is commonly acknowledged that the beneficiaries and other interested parties have significantly fewer procedural rights than interested parties in other EU competition law proceedings, as the proceedings are meant to be bilateral (i.e. between the Commission and the Member State concerned) only. This perception of the proceedings remains unchanged, although interested parties, especially the beneficiary, may be – as will be further shown – strongly affected by the Commission’s decision but also by the proceedings itself. The subject of this chapter is, thus, the analysis of the question of how far the European legal framework for the state aid procedure before the European Commission (i.e. the Regulation No. 659/1999, as amended, laying down detailed rules for the application of article 108 of the Treaty on the Functioning of the European Union – the regulation will be further referred to as the ‘Procedural Regulation’) complies with the fundamental procedural rights with regard to the position of the beneficiary of the state aid. The authors of this chapter have strong doubts regarding the question of whether the position and procedural rights of the state aid beneficiary are adequate to his importance in the process of ascertaining the degree of distortion of competition, especially before the Commission, and, most importantly, whether they comply with the fundamental procedural rights he should enjoy according to the European law in force (i.e. with the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union) and case law of the Court of Justice of the European Union.

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