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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 12: The right of fair trial in competition law proceedings: quo vadis the courts of the new EU Member States?

Marco Botta and Alexandr Svetlicinii

Subjects: law - academic, competition and antitrust law


During recent years, the debate concerning the compatibility of EU competition enforcement with fundamental rights has gained momentum. Following the judgment of the European Court of Human Rights (ECtHR) in Menarini, the academic debate has focused on the compatibility of the standard of judicial review applied by the General Court (GC) and the European Court of Justice (ECJ) in competition law proceedings with the principle of ‘fair trial’. The latter is part of the broader right of defense guaranteed by Article 6 European Convention on Human Rights (ECHR), as well as by Article 47 EU Charter of Fundamental Rights (EU Charter). On the other hand, limited attention has been paid to the judicial review exercised by the national courts of the EU Member States (EU MS) in reviewing the Decisions of the National Competition Authorities (NCAs) sanctioning competition law violations. Following the decentralization of EU competition law enforcement, all EU MS have aligned their national competition laws with Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). On the other hand, the same substantive provisions are enforced under different procedural rules in each EU MS. The increasing number of decisions adopted by NCAs causes a growing involvement of national judiciary in competition law enforcement. In particular, national courts review the NCAs’ decisions in accordance with the standard of review provided by national procedural law and embedded in the national legal culture.

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