Edited by Inge Govaere, Reinhard Quick and Marco Bronckers
JOBNAME: Trade and Competitio PAGE: 1 SESS: 47 OUTPUT: Mon Jun 20 16:16:16 2011 28. When the judge prosecutes, power prevails over law* Catherine Smits and Denis Waelbroeck** As is well-known, the right to a fair trial as enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) implies that charges shall be determined by an independent and impartial tribunal at ﬁrst instance, following a hearing of the parties that is public and held before the persons actually adjudicating the case. In the absence of this, at the very least, in the few cases where the European Court of Human Rights (ECtHR) accepts that sanctions be imposed by administrative authorities (generally minor offences), a court should exercise full jurisdictional review over the decision taken by the authority. The case has already repeatedly been made that EU competition law proceedings under Articles 101 and 102 TFEU do not satisfy these requirements.1 This is so in particular as investigational, prosecutorial, decisional, and policy-making powers are centralized in the hands of the European Commission. Moreover EU Courts exercise only ‘marginal’ or ‘light touch’ judicial review over Commission decisions in this area. Despite the Commission’s reluctance to engage in any form of signiﬁcant reform as regards its current procedures,2 it is our contention that fundamental reform of EU * ‘Ubi iudicat qui accusat, vis, non lex, valet’, Publilius Syrus, Sentenciae, ﬁrst century BC. ** The authors are indebted to Donald Slater for his invaluable comments on the...
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