Procedural Fairness in Competition Proceedings
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Procedural Fairness in Competition Proceedings

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.
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Chapter 10: Competition law enforcement: administrative versus judicial systems

Daniel Zimmer


Which system of competition law enforcement is preferable: an administrative system, in which the competition authority issues a decision, or a judicial system, in which it must instead procure a court decision? The background of the discussion to be held here is a serious charge that has been levelled at the procedure as implemented, for example, by the European Commission: at its core, this charge holds that in the European administrative procedure – as in many other, analogously designed procedural rules – the investigator, prosecutor and decision-maker is one and the same person – a fact that rules out the possibility of taking a fresh, unbiased perspective to reach an objective decision. Interestingly, this discussion has long spread beyond the specialised audience of law journals. The British weekly magazine The Economist opined in February 2010 in an article: Critics, whose concerns have increased with the ferocity of the sanctions imposed, say that by acting simultaneously as investigator, prosecutor, jury and sentencing judge, the commission is denying defendant firms the basic right to be heard by an impartial tribunal. They are right.

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