Trade and Competition Law in the EU and Beyond
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Trade and Competition Law in the EU and Beyond

Edited by Inge Govaere, Reinhard Quick and Marco Bronckers

This well-documented book comprises a stellar cast of European and American authors delivering an overview of cutting edge issues in the areas of trade and competition law, arising in the EU and beyond.
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Chapter 28: When the Judge Prosecutes, Power Prevails Over Law

Catherine Smits and Denis Waelbroeck


* 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 text. 1 GCLC, Report of Working Group III, ‘Enforcement by the Commission, the Decisional and Enforcement Structure in Antitrust Cases and the Commission’s Fining System’;...

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